IN THE CASE OF:			  

		BOARD DATE:  9 September 2014	  

		DOCKET NUMBER:  AR20130022249 


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 his undesirable discharge be upgraded.   

2.  The applicant states he had a pardon from President Gerald Ford and he had a record of being an outstanding Soldier while in the Republic of Vietnam.

3.  The applicant provides no additional evidence in support of his application. 

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.  He enlisted in the Regular Army on 30 March 1964 for 3 years.  He immediately reenlisted on 4 December 1965 for 3 years.

3.  He served in the Republic of Vietnam from 23 January 1966 to 20 January 1967.  

	a.  He was assigned to the 117th Transportation Company from 31 January  to 18 September 1966.  On 31 July 1966, he received nonjudicial punishment (NJP) for being absent without leave (AWOL) from 29 - 31 July 1966.

	b.  He was assigned to the 783rd Transportation Detachment from 
19 September 1966 to 18 January 1967.  On 19 December 1966, he received NJP for being absent from bed-check.

4.  On 13 March 1967, he was assigned to the Advanced Individual Training Committee Group Company, U.S. Army Training Center, Fort Lewis, WA.  

	a.  He received NJP on 27 September 1967 for:

* being absent from his appointed place of duty
* illegally parking his car and leaving the ignition key on the vehicle

	b.  On 18 January 1968, he was tried before a special court-martial.  He pled not guilty but was found guilty of being disrespectful in language to a noncommissioned officer.

5.  On 29 April 1968, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL from 1 February to 18 March 1968.

6.  He departed AWOL on 14 July 1968 and he was dropped from the rolls on 
15 July 1968.

7.  Headquarters, 9th Infantry Division and Fort Lewis, Fort Lewis, WA Special Orders Number 9, dated 9 January 1975, indicated the applicant returned to military control at Fort Lewis on 9 January 1975.  He was assigned to the Clemency Processing Center, Fort Benjamin Harrison, IN to report on 13 January 1975.

8.  In an undated statement, after having been told by legal counsel about the President's Clemency Program, he elected to:

* sign a Reaffirmation of Allegiance 
* sign a Pledge of Public Service 
* accept an undesirable discharge

9.  On 13 January 1975, he reaffirmed his allegiance to the United States of America and pledged to faithfully serve 8 months of alternate service.  

10.  On 13 January 1975, after having been afforded the opportunity to consult with military counsel, the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313.  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 and could lead to the imposition of a bad conduct or dishonorable discharge.  

11.  He understood that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he:

* would be deprived of all service benefits
* would be ineligible for all benefits administered by the VA
* may be deprived of his rights and benefits as a veteran under both Federal and State laws
* may encounter substantial prejudice in civilian life because of an undesirable discharge

12.  He also understood:

* he must report to his State Director of Selective Service for alternate service within 15 days of discharge
* satisfactory completion of such service would be acknowledged by issuance of a Clemency Discharge Certificate
* such certificate would not alter his ineligibility for any benefits predicated on his military service

13.  On 13 January 1975, he was discharged under the provisions of Presidential Proclamation 4313.  He had completed 2 years, 4 months, and 25 days of net active service that was characterized as under other than honorable conditions.  He received an Undesirable Discharge Certificate.  He had 189 days time lost before his normal expiration of term of service (ETS) and 2,228 days after his normal ETS.

14.  In a letter, dated 12 June 1975, the National Headquarters Selective Service System stated the applicant was terminated from enrollment in the Reconciliation Service Program and he did not complete his required period of alternate service. He was uncooperative with efforts to place him on an approvable job.  He failed to report for scheduled interviews and he indicated he would continue on his regular job.

15.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

16.  Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford.  It identified three categories of persons and permitted them to apply for clemency discharge.  Those categories were:

* civilian fugitives who were draft evaders
* members of the military who were still AWOL
* former military members who had been discharged for desertion, AWOL, or missing movement.

Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial.  Those who elected to earn a clemency discharge (AWOL’s and discharged members) could be required to perform up to 24 months alternate service.  Upon successful completion a clemency discharge would be issued.  (NOTE: In any event, the clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits.)

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

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

DISCUSSION AND CONCLUSIONS:

1.  He contends he was an outstanding Soldier while in the Republic of Vietnam. However, he received NJP twice while assigned there.
2.  After returning from Vietnam he was convicted by two special courts-martial and received NJP on one additional occasion.  He had 189 days time lost before his normal ETS and 2,228 days after his normal ETS.  Therefore, his service since his reenlistment is considered unsatisfactory.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.
Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  In view of the foregoing, there is an insufficient basis for upgrading his discharge to an honorable discharge or a general discharge under honorable conditions.

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)                                         AR20130022249



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ABCMR Record of Proceedings (cont)                                         AR20130022249



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