IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130009454 


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 an upgrade of his undesirable discharge. 

2.  The applicant states he believes he was discharged for the wrong reasons.  He was discharged for being absent without leave (AWOL).  This is not true.  He was given orders to Fort Lewis, WA. 

	a.  While at Fort Jackson, SC, he picked up some papers to go to Fort Lewis, WA.  An individual gave him a sealed envelope to take with him so that the Army would not have to mail it.  He took 30 days of leave and went to the airport to pick up his ticket to Fort Lewis, WA.  They gave him the wrong ticket and upon landing, he realized he was in Newark, NJ.  He asked for another ticket but he was told it would cost him $3,000.  A colonel happened to see him and told him he could get arrested because he was in the wrong place.  The colonel also told him he was the eleventh person in this situation.  He advised him to place an overcoat over his uniform and he would get him a ticket to Cincinnati, OH. 

	b.  He flew to Cincinnati, OH and called home to his sister and brother to pick him up.  He then called Fort Jackson, SC and the Red Cross in an effort to get some assistance; but no one would give him the money.  From that point on, every 2 or 4 weeks, someone would call his mother's house to inquire about him but no one came to arrest him.  In fact, the Army continued to send his mother a $10 allotment.   

	c.  He now has documented medical issues and he is in need of medical assistance. 
3.  The applicant provides:

* DD Form 214 (Report of Separation and Record of Service)
* Statement from his sister
* Statement from his brother
* Statement from his Pastor

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's records show he was inducted into the Army of the United States on 29 October 1969.  He completed basic combat training at Fort Dix, NJ, and advanced individual training at Fort Jackson, SC.  He was awarded military occupational specialty 94B (Cook). 

3.  On 17 September 1970, Headquarters, Fort Jackson, SC issued him reassignment instructions to Vietnam.  He was ordered to report to the U.S. Army Overseas Replacement Station, Fort Lewis, WA, on 10 November 1970. 

4.  On 3 October 1970, he acknowledged receipt of his reassignment instructions and indicated he would comply with his port call instructions.  He also acknowledged receipt of special instructions regarding adjustment of his port call and contact information in the event of an emergency or a change. 

5.  The available evidence shows he failed to report to the Overseas Replacement Station and as such, he was reported AWOL on or about 28 October 1971 and dropped from the rolls as a deserter on or about 28 November 1971. 

6.  On 16 December 1974, he returned to military control pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974 He was assigned to Fort Benjamin Harrison, IN, for processing.  Upon his return, the President's Clemency Program was explained to him and he elected Option 1, indicating he would sign a Reaffirmation of Allegiance, a Pledge of Public Service, and an Acceptance of an Undesirable Discharge. 

7.  On 17 December 1974, he submitted a "Statement to Board for Alternate Service."  He indicated that he submits the following matters to the alternate service board for consideration in their determination of the number of months of alternate service that he must serve.  He voluntarily submitted this statement with the full knowledge and understanding that he was not obligated to make this statement or complete this form.  He did not indicate an answer to the question "Reason for Absence from Military Service?"

8.  Also on 17 December 1974, he submitted a statement indicating he had an opportunity to inspect his military records to see if there were any irregularities, inconsistencies, or information that may be beneficial to his case.  

9.  On 18 December 1974, the applicant submitted a voluntary request for discharge from the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974.  He acknowledged that he understood his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the Uniform Code of Military Justice (UCMJ) and could lead to a bad conduct or a dishonorable discharge.  He further acknowledged he was making this request of his own free will and he had not been subjected to coercion by anyone.  He further stated: 

* prior to completing this form, he was afforded the opportunity to consult with military counsel 
* he was advised by counsel of the nature of the offenses for which he may be tried and the maximum punishment which could be imposed
* he would be discharged under other than honorable condition and furnished an Undesirable Discharge Certificate
* he was advised of the adverse nature of such request and the possible consequences
* as a result of the issuance of such a discharge, he could be deprived of all service benefits and he could be ineligible for many or all benefits administered by the Veterans Administration
* if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws

10.  With his request for voluntary discharge, the applicant also submitted a "Reaffirmation of Allegiance and Pledge to Complete Alternate Service."  He solemnly reaffirmed his allegiance to the United States of America.  He acknowledged that in or about November 1970, he voluntarily absented himself from his military unit without being properly authorized which was in contravention of the oath taken upon entering the Nation's military service. 

11.  On 18 December 1974, the Army accepted his voluntary request for discharge, Reaffirmation of Allegiance, and Pledge of Public Service.  Accordingly, on 18 December 1974, the U.S. Army Administration Center, Fort Benjamin Harrison, IN, published Orders 258, ordering his reduction to the lowest enlisted grade and discharge from the Army effective 18 December 1974 with an Undesirable Discharge Certificate.  

12.  On 18 December 1974, he was discharged for the good of the service by reason of willful and persistent unauthorized absence pursuant to PP Number 4313.  He was assigned an under other than honorable conditions characterization of service and issued an Undesirable Discharge Certificate.  He completed 1 year and 14 days of active service and he had 1,142 days of lost time. 

13.  On 1 August 1975, the Reconciliation Service Division Manager, Selective Service System, issued the applicant a Termination from Reconciliation Service Program.  He indicated that the applicant was terminated from enrollment in the Reconciliation Service Program because he did not complete his required period of alternate service.  He was not cooperative with efforts to place him on an approved job and he refused to accept an approved position. 

14.  He provides:

	a.  A statement, dated 12 May 2012, from his sister who states that she verifies the applicant was driven to Fort Jackson, SC in August by his sister and brother-in law.  She also states that going AWOL was not the applicant's intent.  He believed he was going to the right location.  He was confused and embarrassed when he found out he was in the wrong location. 

	b.  A statement, dated 7 March 2013, from his brother who also states the applicant went to the wrong airport and when he got back to Cincinnati, he called the Red Cross but they would not give him an airline ticket.  He also called Fort Jackson, SC in an effort to resolve the situation but no one would help him. 

	c.  A statement, dated 7 March 2012, from his pastor who states the applicant has always had some physical or mental conditions and that he should be discharged for a mental condition rather than the undesirable discharge he received.  He was a sick man at the time. 

15.  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.  

16.  Public Law 95-126, dated 8 October 1977, statutorily barred VA benefits for AWOLs greater than 180 days as well as for conscientious objectors.

17.  Army Regulation 635-200 (Enlisted Administrative Separations) governs the separation of enlisted personnel.

	a.  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.  

	b.  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 issued assignment instructions to report to Fort Lewis, WA, for forward movement to Vietnam.  The available evidence shows he was given specific instructions regarding his port call and who to contact in the event of an emergency.  He did not report and as such, he was reported in an AWOL status. He remained in this status from November 1971 until December 1974.

2.  When he returned to military control, in order to avoid trial by a court-martial that could have led to a bad conduct or a dishonorable discharge, he was considered under the President's Clemency Program.  He was allowed to submit a voluntary request for discharge and signed a Reaffirmation of Allegiance and Pledge of Public Service.  In exchange, he was discharged administratively with an under other than honorable conditions discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering his lengthy AWOL and the reason he gave for going AWOL, the type of discharge he was given was appropriate.

4.  Not only did he violate the original oath he took upon his entry on active duty by going on a length AWOL, he also failed to complete his required period of alternate service and violated the terms of his enrollment in the Reconciliation Service Program as he was not cooperative with efforts to place him on an approved job and he refused to accept an approved position.  If he had completed the alternate service satisfactorily, he would have been entitled to receive a Clemency Discharge.  He did not.

5.  His argument that he went to the wrong airport is not supported by any evidence.  When he submitted his request for voluntary discharge, not only did he admit to his willful and persistent unauthorized absence, he did not mention any reasons for his extensive AWOL.  It is reasonable to presume the time to bring up the airport mix up was in connection with his voluntary request for separation, not some 40 years later. 

6.  The Board is empathetic with the applicant’s current mental and physical health problems.  However, there is no evidence of record to show that he did not know that going AWOL was wrong.  In addition, it appears Public Law 95-126 would statutorily bar the applicant from receiving VA benefits (since his AWOL was for more than 180 days) even if his discharge were to be upgraded.

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)                                         AR20130009454



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ABCMR Record of Proceedings (cont)                                         AR20130009454



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