IN THE CASE OF:	  

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130019856 


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 upgrade of his undesirable discharge.

2.  The applicant states he had family problems and decided not to return to duty.  At the time, he thought it was the right thing to do.  He was under the influence of alcohol and drugs which led to making bad decisions.

3.  The applicant provides copies of four DD Forms 214 (Report of Transfer or Discharge) for the periods ending 6 August 1965, 3 November 1969, 
17 November 1970, and 30 January 1975.

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.  On 7 August 1963, the applicant was inducted into the Army of the United States and he entered active duty.  On 6 August 1965, he was honorably separated at the expiration of his term of service.  He was awarded an Army Good Conduct Medal and transferred to the U.S. Army Reserve in pay grade 
E-4. 

3.  On 11 October 1965, he enlisted in the Regular Army.  He reenlisted as a staff sergeant on 4 November 1969 and 17 November 1970.  

4.  On 5 June 1971, the applicant was absent without leave (AWOL) from his unit in Vietnam.

5.  The applicant returned to duty on 29 January 1975.  After consulting with legal counsel on 30 January 1975, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for the good of the service -in lieu of trial by court-martial.  He acknowledged he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he understood he could receive a discharge under other than honorable conditions.  He acknowledged that he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration (VA).  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he were issued an Undesirable Discharge Certificate.  He also acknowledged that he needed to arrange alternative service with the director of his home state's Selective Service and that a clemency discharge would not be issued unless he completed the alternative service.

6.  He was reduced to pay grade E-1 and discharged under other than honorable conditions for the good of the service under the provisions of Presidential Proclamation 4313.  He had 1,329 days of time lost during this final enlistment period.

7.  The applicant failed to complete the alternative service agreed upon.

8.  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 VA.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for discharge, after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid a trial by court-martial and the felony conviction that he might have received.

2.  The type of discharge directed and the reasons therefore were appropriate considering the facts of the case.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.  There is no basis for upgrading his undesirable discharge to either an 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)                                         AR20130019856





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ABCMR Record of Proceedings (cont)                                         AR20130019856



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