IN THE CASE OF:	  

		BOARD DATE:	   7 January 2014

		DOCKET NUMBER:  AR20130016428 


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, reconsideration of his earlier request that his discharge be upgraded to a more favorable discharge that will qualify him for benefits.

2.  The applicant states, in effect, that he has been trying to get his discharge upgraded to a more favorable discharge that will qualify him for veteran’s benefits.  He suffers from post-traumatic stress disorder (PTSD) and needs medical treatment.  He should have been considered for amnesty when President Carter pardoned Vietnam veterans and does not understand why it did not apply to him.  In addition, he believes his records have been altered and that someone else’s records have been integrated with his. 

3.  The applicant provides a list of enclosures on page 2 of his letter requesting an upgrade of his discharge.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090001814, on 5 May 2009.

2.  The applicant was inducted on 26 October 1965.  He completed his basic training at Fort Benning, Georgia and was transferred to Fort Polk, Louisiana to undergo his advanced individual training as a light weapons infantryman. 
3.  On 26 February 1966, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 21 February to 25 February 1966.  

4.  On 13 March 1966, he wrote to the President of the United States requesting his assistance in obtaining a hardship discharge.  He indicated that he had applied twice.  On 22 March 1966, The Adjutant General (TAG) of the Army responded to the applicant advising him that the Commanding General of Fort Polk had advised that he had not submitted the necessary documents to warrant a hardship discharge.  TAG advised the applicant as to the steps he needed to take in submitting his request. 

5.  He completed his training and was transferred to Vietnam on 26 April 1966 and was assigned as a rifleman in an infantry company.  He was advanced to the pay grade of E-3 on the day of his arrival.  On 11 October 1966, NJP was imposed against him for being disorderly in the company area by urinating in the chow line.

6.  He was advanced to the pay grade of E-4 on 11 March 1967 and departed Vietnam on 1 April 1967 for assignment to Fort Hood, Texas.

7.  On 25 May 1967, he was granted a waiver to reenlist and on 28 May 1967 he was honorably discharged for immediate reenlistment.  He reenlisted on 29 May 1967 for a period of 3 years and his present duty assignment.

8.  On 9 September 1968, he was convicted by a summary court-martial of failure to go to his place of duty on 19 August 1968 and being AWOL from 27 August to 6 September 1968.  He was sentenced to a forfeiture of $70.00 pay and extra duty and restriction for 30 days.

9.  On 14 September 1968, he again went AWOL and remained absent in desertion until he was apprehended by civil authorities on 13 May 1969.  He was confined by civil authorities until 28 May 1969 when he was surrendered to military authorities at Fort Meade, Maryland and placed in confinement.

10.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Veterans Administration (VA) in Cleveland, Ohio in 1972.  However, his records do contain a duly-authenticated DD Form 214 signed by the applicant at the time of his discharge which shows that he was discharged under other than honorable conditions on 23 June 1969 under the provisions of Army Regulation 635-200 


(Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  He had served 1 year, 3 months, and 3 days of active service during his last enlistment for a total of 2 years, 10 months, and 1 day of active service.  He had 292 days of lost time due to AWOL and confinement.

11.  There is no evidence in the available record to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  Additionally, there is no evidence to show that he applied for review of his discharge under the Department of Defense Special Discharge Review Program (SDRP).  It is not readily apparent that his records have been altered. 

12.  A review of the documents submitted by the applicant with his application shows, in effect, that he was treated by a mental treatment facility in 2013 and was diagnosed as having PTSD.

13.  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.  

	c.  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.
14.  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.

15.  Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals.  

	a.  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.  

	b.  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.  

	c.  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 Department of Veterans Affairs.  While there is no change in benefit status per se, a recipient may apply to the VA for benefits.

16.  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.  In the absence of evidence to the contrary, it must be presumed that 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.  Accordingly, his undesirable discharge appropriately reflects the character of his service.

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 undistinguished record of service and his extensive absences, there is no basis on which to upgrade his discharge to either honorable or general.

3.  The evidence of record does not show that the applicant made application for or that he received a Presidential Pardon.  Presidential Pardons only reinstate certain civilian rights; they do not impact the characterization of military service.  In any event, it does not appear that the applicant’s discharge would have been upgraded under the SDRP based on the extensive amount of lost time he accrued in such a short period of service and his otherwise undistinguished record of service.

4.  The applicant’s contention that his records have been altered has also been noted; however, the applicant has not identified any documents in that regard and there are no documents in his official records that indicate any alterations were made to his record.

5.  The Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits that they otherwise would not be entitled.

6.  Accordingly, there appears to be no basis to grant his request for 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 to amend the decision of the ABCMR set forth in Docket Number AR20090001814, dated 5 May 2009.




      ____________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)                                         AR20130016428





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ABCMR Record of Proceedings (cont)                                         AR20130016428



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