IN THE CASE OF:	  

		BOARD DATE:	  9 January 2014 

		DOCKET NUMBER:  AR20130007128 


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 affirmation of his general discharge as upgraded by the Army Discharge Review Board (ADRB).

2.  The applicant defers his comments to counsel. 

3.  The applicant provides copies of documents from his records including his 
DD Forms 214 (Armed Forces of the United States Report of Separation or Discharge) and enlistment contracts and a copy of his Department of Veterans Affairs (VA) transcript of hearing.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board affirm the applicant’s general discharge.

2.  Counsel states, in effect, that the applicant was a 17-year old veteran who had just returned from heavy combat in Vietnam to find that his step-father was abusing his mother and three siblings and he decided to stay home to protect his family from his step-father.  The applicant intended to return to the Army after the situation was resolved.  It never crossed his mind that he would be discharged.  The ADRB upgraded his discharge to a general discharge; however, the VA has denied him benefits because his discharge was not affirmed by a corrections board.  

3.  Counsel provides a three-page brief explaining the applicant’s application for affirmation. 
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 enlisted in the Regular Army with parental consent on 30 June 1970 for a period of 3 years.  He completed his basic training at Fort Leonard Wood, Missouri and his advanced individual training as a cannoneer at Fort Sill, Oklahoma before being transferred to Germany in November 1970.

3.  On 2 March 1971, he was honorably discharged for the purpose of immediate reenlistment.  On 3 March 1971, he reenlisted for a period of 3 years and assignment to Vietnam.  He was transferred to Vietnam on 24 May 1971.

4.  He departed Vietnam in March 1972 for assignment to Fort Carson, Colorado.  However, he did not report to Fort Carson.  He was reported as being absent without leave (AWOL) effective 11 March 1972 and remained absent in desertion until he was returned to military control on 16 September 1972.  He again went AWOL on 8 October 1972 and remained absent in desertion until he was apprehended by civil authorities on 12 February 1973.  

5.  On 26 March 1973, court-martial charges were preferred against the applicant for being AWOL from 11 March to 15 September 1972 and 9 October 1972 to 
11 February 1973.

6.  On 29 March 1973 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement in his own behalf whereas he stated he desired to be undesirably discharged because he could not cope with Army life, that he did not want to be in the Army any longer, and that he would continue to go AWOL to prove he wanted to be discharged.

7.  On 7 April 1973, the appropriate authority approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

8.  Accordingly, on 13 April 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 1 year, 11 months and 7 days of active service during the period under review and had 315 days of lost time due to AWOL.

9.  On 5 April 1978, he applied to the ADRB for an upgrade of his discharge.  He contended at that time that his discharge should be upgraded because he served a tour in Vietnam, because he was having trouble at home, and because he was told at the time he requested a discharge under chapter 10 that he would receive a general discharge.

10.  After reviewing the available evidence the ADRB determined that given his successful tour of duty in Vietnam, his discharge was inequitable and voted on
27 February 1980 to upgrade his discharge to a general discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  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.  

12.  The Special Discharge Review Program, often referred to as the “Carter Program,” was announced on 29 March 1977.  The program mandated upgrade of administrative discharges if the applicant met specified criteria.

13.  Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals.  These groups were fugitives from justice who were draft evaders; members of the Armed Forces who were in an unauthorized absence status; and prior members of the Armed Forces who had been discharged with a punitive discharge for violations of Articles 85, 86, or 87 of the Uniform Code of Military Justice.  The last group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military and members of the Reserve components) who would make a determination regarding the performance of alternate service.  That board was authorized to award a Clemency Discharge without the performance of alternate service (excusal from alternate service).  The dates of eligibility for consideration under this proclamation for those already discharged from the military service were 4 August 1964 to 28 March 1973, inclusive.  Alternate service was to be performed under the supervision of the Selective Service System.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service.  The military services issued the actual Clemency Discharges.  The Clemency Discharge is a neutral discharge, issued neither under "honorable conditions" nor under "other than honorable conditions."  It is to be considered as ranking between an undesirable discharge and a general discharge.  A Clemency Discharge does not affect the underlying discharge and does not entitle the individual to any benefits administered by the VA.  While there is no change in benefit status per se, a recipient may apply to the VA for benefits.

14.  In October 1978, Public Law 95-126 was enacted.  This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.
2.  It is also noted that by allowing the applicant to administratively separate under the provisions of Army Regulation 635-200, chapter 10, he avoided being tried by court-martial and having a felony offense in his record.  Given his extensive absences during such a short period of service, there appears to be no basis on which to affirm his discharge as upgraded by the ADRB.
  
3.  This is especially true given the lack of mitigating circumstances provided by the applicant at the time he submitted his request for discharge and the applicant’s attitude toward continued service at the time. 

4.  Accordingly, there appears to be no basis to grant his request to affirm 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)                                         AR20130007128





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ABCMR Record of Proceedings (cont)                                         AR20130007128



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