IN THE CASE OF: 

		BOARD DATE:	    27 May 2014

		DOCKET NUMBER:  AR20130017012 


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 (UD).

2.  The applicant states, in effect, he has no proof, but he was told bad discharges could be upgraded based on the Amnesty Act.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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, in pay grade E-1, on 27 August 1968, for 3 years.  He served as an armor crewman and he was advanced to pay grade E-3 in 1969.  

3.  On 11 July 1969, he was convicted by a special court-martial of being absent without leave (AWOL) from 25 March through 22 May 1969.  His sentence included a reduction to pay grade E-2 and a forfeiture of pay.

4.  On 21 August 1969, he accepted nonjudicial punishment for failing to go to his appointed place of duty.

5.  On 2 November 1970, a DD Form 458 (Charge Sheet) was completed by the Commander, Special Processing Detachment, Fort Riley, KS.  The applicant was charged with one specification of being AWOL from 15 September 1969 through 17 October 1970.

6.  On 2 November 1970, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-206 (Misconduct, Fraudulent Entry, Conviction by Civil Court, AWOL, and Desertion), paragraph 45b, for unauthorized absence in excess of 1 year.  The company commander stated the applicant had a record of two periods of AWOL totaling 458 days and the applicant's character and general behavior did not portray him as an asset to the service.

7.  A Certificate, dated 17 November 1970, shows the applicant was found to have no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

8.  On 9 December 1970, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He also acknowledged he understood he could receive an under conditions other than honorable discharge and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf. 

9.  On 10 December 1970, the applicant's battalion commander recommended approval of the recommendation for discharge and the issuance of an Undesirable Discharge Certificate.

10.  On 31 December 1970, the separation authority approved the recommendation and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.
11.  Accordingly, on 11 January 1971, he was discharged.  He was credited with completing 1 year, 1 month, and 7 days of net active service and 458 days of time lost.  His DD Form 214 lists the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).

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

13.  Army Regulation 635-206, in effect at the time, provided for the discharge of an individual by reason of desertion or AWOL.  Discharge for desertion or AWOL could be ordered only when the unauthorized absence had continued for 1 year or more and retention in the service was precluded by regulations or was not considered desirable or in the best interest of the U.S. Government.  When such separation was warranted a UD was considered appropriate unless particular circumstances of the case warranted an honorable or general discharge.

14.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, stated in:

   a.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

15.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an UD. Alternate service was to be performed under the supervision of the Selective Service System.  The individual was responsible for finding a job that met the requirements of the program.  He would obtain the approval of his State Selective Service officials regarding the job and reports would be furnished periodically as to how he was performing.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service and the military issued the actual clemency discharge.  A clemency discharge did not restore veterans' benefits; rather, it restored Federal and, in most instances, State civil rights which might have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service, the original characterization of service would be retained.

16.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, this program, known as the under the DOD Special Discharge Review Program (SDRP) required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual.

17.  In October 1978, Public Law 95-126 was enacted.  This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to veterans benefits unless they had been entitled to such benefits before their SDRP review.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant's company commander recommended the applicant be discharged for an unauthorized absence in excess of 1 year.  He stated the applicant had a record of two periods of AWOL totaling 458 days and the applicant's character and general behavior did not render him an asset to the service.  The applicant acknowledged he understood the discharge action and the implications of such a discharge.  He was discharged accordingly on 
11 January 1971.



2.  There is no evidence of record showing he entered into and completed an alternate public work program for a clemency discharge under Presidential Proclamation 4313 or met the criteria for an upgrade of his discharge under the DOD SDRP.  

3.  There is also no evidence that his treatment was unjust or inequitable.  He has provided no evidence or argument sufficient to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative discharge was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the requested relief.

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)                                         AR20130017012



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ABCMR Record of Proceedings (cont)                                         AR20130017012



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