IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120010073 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his undesirable discharge.

2.  The applicant states:

* He received a clemency discharge issued pursuant to Presidential Proclamation Number 4313 (PP 4313)
* He went into the Army at age 17
* He served in Germany and Vietnam
* He got hepatitis C while he was in the Army and has been suffering         32 years
* He needs treatment at the Department of Veterans Affairs (VA) because he can’t get insurance

3.  The applicant provides:

* DD Form 215 (Correction to DD Form 214), dated 10 December 1975
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 21 October 1968 and 12 November 1971

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 25 September 1950.  He enlisted in the Regular Army on 17 November 1967 for a period of 3 years.  He completed his training and was awarded military occupational specialty 36C (lineman).  He arrived in Germany in May 1968.  On 21 October 1968, he was honorably discharged for immediate reenlistment.  He reenlisted on 22 October 1968 for a period of 
3 years.  He departed Germany in December 1969.  

3.  Between 4 April 1969 and 11 February 1970, nonjudicial punishment (NJP) was imposed against the applicant on four occasions for:

* Disobeying a lawful order and failure to repair
* AWOL for 7 hours
* Failure to repair
* Being absent without leave (AWOL) from 17 January to 2 February 1970  

4.  He arrived in Vietnam on 19 February 1970.

5.  On 9 February 1971, he was convicted by a special court-martial of being AWOL from 17 November to 5 December 1970, leaving his sentinel post in Vietnam (two specifications), and failure to repair.  He was sentenced to confinement at hard labor for 4 months, a forfeiture of $80.00 pay for 4 months, and to be reduced to E-1.  On 25 February 1971, the convening authority approved the sentence but suspended the period of confinement.  

6.  He departed Vietnam on 18 February 1971.

7.  On 26 May 1971, he was AWOL and returned to military control on 29 September 1971.  On 29 September 1971, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.  

8.  On 2 October 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.  

9.  The separation authority action is not available.

10.  He was discharged accordingly on 12 November 1971 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 3 years, 2 months, and 11 days of creditable active service with 283 days of lost time.

11.  There is no evidence of record which shows he contracted hepatitis C prior to his discharge. 

12.  A DD Form 215, dated 10 December 1975, added the entry "DD 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No. 4313" to item 30 (Remarks) of his DD Form 214 for the period ending 12 November 1971.

13.  The available records contain an undated letter which states the applicant was awarded a clemency discharge pursuant to PP 4313, dated 16 September 1974.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.

15.  PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals:  (1) fugitives from justice who were draft evaders; (2) members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of Articles 85 (desertion), 86 (absent without leave), or 87 (missing movement) of the Uniform Code of Military Justice (UCMJ).  The third group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President who would establish a period of alternate service of not more than 24 months that the individual should perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a clemency discharge.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was 17 years of age when he enlisted and successfully completed basic combat training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  Age is not a sufficiently mitigating factor.  

2.  Although he contends he got hepatitis C while serving in the Army, there is no evidence and he provided no evidence which shows he contracted hepatitis C prior to discharge.

3.  He contends he needs treatment at the VA because he can't get insurance.  However, a discharge is not changed for the purpose of obtaining VA benefits.

4.  The evidence shows he was discharged under other than honorable conditions on 12 November 1971 and issued an Undesirable Discharge Certificate.  The evidence also shows he was awarded a clemency discharge in 1975 pursuant to PP 4313, dated 16 September 1974.  The governing proclamation states the clemency discharge did not affect the underlying discharge.
5.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

6.  His record of service during his last enlistment included four NJP actions and 283 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7.  The applicant's record of service is insufficiently meritorious to warrant an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120010073



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ABCMR Record of Proceedings (cont)                                         AR20120010073



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