IN THE CASE OF:	  

		BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20130001248 


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, upgrade of his undesirable discharge to a general discharge due to a medical condition during active duty.

2.  The applicant states:

	a.  He was drafted with physical conditions that limited his ability to serve due to persistent pain caused by injuries to his back and knee in an automobile accident.  The injuries were outlined by his personal physician prior to his induction and during his service.  Ultimately, the physical limitations associated with his back injury required him to have surgery.

	b.  In 1963, he sustained serious injuries to his back and right knee in an automobile accident.  He always knew the physical condition would be with him for the rest of his life and would limit his ability to serve.

	c.  In 1968, he received an offer to join the U.S. Air Force Reserve.  After consulting with his physician, he was told in all likelihood, he would not make it through training due to his physical problems and his physician wrote a letter to the Selective Service Board at that time.

	d.  On 7 May 1969, he was drafted into the Army.  Shortly after starting basic training, he began to have problems with his knee and back and he made numerous trips to sick call.
	e.  He eventually followed his father's advice to be away until circumstances allowed him to be discharged.  Following his discharge, he performed alternative service for minimum wage at Kivel Nursing Home in Phoenix, AZ.

	f.  He now has a 4-inch scar on his back from surgery and believes his
6 months and 2 days of active duty service was honorable under extremely painful circumstances.

3.  The applicant provides:

* a self-authored statement
* DD Form 214 (Report of Separation From Active Duty)
* two identical letters from a doctor, dated 5 and 20 June 1968
* a letter from his senator, dated 4 August 1969

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 received a pre-induction physical examination on 3 March 1969.  The applicant noted he was in good health with the exception of an old injury.  The examining physician noted the applicant injured his right knee in 1963, 1965, with occasional locking and swelling, and that he had periodic low back pain in addition to several other previous injuries and illnesses; however, he was determined as fully qualified for induction.

3.  The applicant was inducted into the Army of the United States on 7 May 1969.

4.  His record contains a Standard Form 513 (Clinic Record – Consultation Sheet), dated 4 November 1969, that shows based on a congressional inquiry, 


he was evaluated by a physician in orthopedics for chronic low back as well as right knee and left ankle pain.  It was determined he was a healthy adult male who was fit for duty in military occupational specialty (MOS) 11B (light weapons infantryman).

5.  His military service record contains evidence that shows on or about
6 November 1969, he voluntarily absented himself from his military unit without proper authorization and he remained absent until on or about 30 September 1974.

6.  His record contains a letter to the applicant, dated 17 September 1974, that indicates the applicant requested and he was eligible to participate in the program established by Presidential Proclamation 4313 of 16 September 1974.

7.  A Joint Alternative Service Board established by Presidential Proclamation Number 4313 reviewed the applicant's official records and determined he would be required to serve 24 months of alternative service.  The applicant agreed to sign a Reaffirmation of Allegiance, a Pledge of Public Service, and to accept an undesirable discharge.

8.  On 2 October 1974, the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974.

9.  On 2 October 1974, the applicant signed the Reaffirmation of Allegiance and Pledge to Complete Alternative Service wherein he agreed to serve in whatever alternative service his country may prescribe for him and he pledged to faithfully compete a period of 24 months of service.

10.  The DD Form 214 he was issued shows he completed 6 months and 2 days of total active service with 546 days of time lost before his normal expiration of term of service (ETS) and 1240 days of time lost after his normal ETS.  Item 27 (Remarks) shows he agreed to serve 24 months of alternate service pursuant to Presidential Proclamation 4313.

11.  The applicant's record contains a letter issued by the National Headquarters, Selective Service System, dated 19 September 1975, that shows the applicant was terminated from the Reconciliation Service Program because he left his approved job without authorization and he had not responded to official correspondence concerning his actions.

12.  There is no evidence that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  The applicant provides copies of identical letters from his physician to the Selective Service System Local Board #7 and the Fort Ord, CA, Dispensary
No. 4.  In the letters his physician attests to the applicant having suffered a cervical strain and right leg contusions when involved in an automobile accident.  The physician states the cervical strain cleared up nicely, but the right knee had been observed to lock on occasion and it was felt the applicant may have to undergo surgery sometime in the future.  He also provides a copy of a letter to his father from a U.S. senator that shows the commanding general at Fort Ord responded to the senator’s request for information pertaining to the applicant’s physical status; however, he was not satisfied and was requesting a complete report.

14.  Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313   or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would 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 Veterans Administration (VA).  The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights that may have been denied due to the less than honorable discharge.

15.  Army Regulation 635-200 (Enlisted Separations), then in effect, set forth the basic authority for separation of enlisted personnel.

	a.  Paragraph 3-7a stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty 


for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.   Paragraph 3-7b states 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.  There is no evidence of record and the applicant did not provide any evidence that shows he was anything other than a healthy adult male who was fit for duty in MOS 11B.

2.  The evidence shows that upon his return from a lengthy and willful unauthorized absence, the applicant agreed to be discharged and complete alternate service.  Evidence shows he did not complete the program.

3.  It should be noted that participation and successful completion of the Clemency Program did not provide for an upgrade of an individual's discharge.  It simply restored the civil rights that would have been lost had the individual not participated.

4.  His record shows he had a total of 1,786 of time lost.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

5.  In view of the foregoing, there is no basis for granting the applicant and honorable or a general 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)                                         AR20130001248



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ABCMR Record of Proceedings (cont)                                         AR20130001248



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