IN THE CASE OF:	  

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20140000564 


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) to an honorable discharge.

2.  The applicant states, in effect, he believes the record to be in error or unjust because he participated in President Gerald Ford's Amnesty Program, completed the requirements of the program, and served in Vietnam as a surviving son.  Due to his health conditions he was determined to be a Vietnam Era herbicide-exposed veteran.  He discovered the error when filing for benefits due to cancer. 

3.  The applicant provides copies of two letters from the Department of Veterans Affairs (VA) and a Member of Congress.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.
2.  The applicant enlisted in the Regular Army (RA) on 27 April 1967.  He served as a communications center specialist and he was promoted to pay grade E-5 on 26 November 1968.  He served in Thailand from 28 May 1968 through 17 May 1969.

3.  He was honorably discharged on 15 July 1969 for the purpose of immediate reenlistment.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) crediting him with completing 2 years, 2 months, and 19 days of net active service.

4.  He reenlisted in the RA on 16 July 1969 for 4 years.  He served in:

* Germany from 11 September through 22 December 1969
* Vietnam from 1 March 1971 through 27 January 1972

5.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 20 June 1972 - being absent from his unit from 14 to 15 June 1972
* 27 July 1972 – failing to go to his appointed place of duty and failing to obey a lawful order issued by his commanding officer

6.  He was reported absent without leave (AWOL) on 1 December 1972 and he was dropped from the rolls of his organization on 31 December 1972.  On 
26 January 1975, he was returned to military control and was assigned to the Joint Clemency Processing Center, Fort Benjamin Harrison, IN.

7.  On 27 January 1975, after consulting with counsel, the applicant elected to participate in the President's Clemency Program and accept a UD.  In his a statement, the applicant indicated his unauthorized absence was due to family problems and his company commander did not want to help him.  His commander made him move on post and restricted him to the barracks.  He felt the commander was violating his rights.  During his absence he worked in the state of Colorado.  He had 5 years and 5 months of good service to his country.  He served in Thailand, Germany, and Vietnam.  He had 7 months left of his service obligation and if it was not for the way his commander treated him he would have made a career of it.

8.  On 28 January 1975, he reaffirmed his allegiance and pledged to complete alternate service.


9.  On 28 January 1975, he was discharged due to willful and persistent unauthorized absences pursuant to Presidential Proclamation Number 4313, for the good of the service.  He was credited with completing 3 years, 4 months, and 16 days of net active service during the period under review and he had 781 days of time lost.  He was issued an Undesirable Discharge Certificate.

10.  A letter, dated 11 July 1975, shows the applicant was terminated from the Reconciliation Service Division because he did not complete his required period of alternate service.  The requirements of the program were explained to him and efforts were made to provide an opportunity for him to satisfactorily complete his alternate service.  The applicant was non-cooperative with efforts to place him on an approved job.  He refused to accept two approved jobs because he did not want to leave his present job.  

11.  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.

12.  He provided copies of the following:

* letter, dated 9 December 2012, wherein the VA advised him that he was 100 percent service-connected and determined to be a Vietnam-era herbicide-exposed veteran
* letter, date 27 December 2012, wherein a congressperson advised him to apply to the ABCMR for an upgrade of his UD

13.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.

14.  Alternate service was to be performed under the supervision of the Selective Service System (SSS).  When the period of alternate service was completed satisfactorily, the SSS would notify the individual's former military service.  The military services issued the actual clemency discharges.  The clemency discharge was a neutral discharge, neither honorable nor less than honorable.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge for the good of the service in lieu of trial by court-martial.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Chapter 10 - 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 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.  At the time, a UD was normally furnished to an individual who was discharged for the good of the service.

   b.  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.

   c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed an offense that was punishable under the UCMJ with a punitive discharge.  After consulting with counsel, he voluntarily requested discharge for the good of the service pursuant to Presidential Proclamation 4313. His discharge proceedings were conducted in accordance with the law and the provisions of Presidential Proclamation 4313 in effect at the time with no indication of procedural errors which would have jeopardized his rights.  

2.  On 11 July 1975, he was terminated from the program due to non-completion of the required period of alternate service, being non-cooperative with efforts to place him on an approved job, and refusing to accept two approved jobs because he did not want to leave his present job.  

3.  He provided no evidence or a convincing argument to show his UD 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 between July 1969 and January 1975 below that meriting a general or fully honorable discharge.  He failed to complete the period of alternative service; therefore, he was not provided a clemency discharge certificate and his original characterization of service was retained.  Therefore, he is not entitled to the requested relief.

4.  Completing the requirements of the program provided for a clemency discharge, not a general or an honorable discharge.  It would have restored his civil rights, but not changed his underlying discharge and would not have entitled him to any benefits administered by the VA and did not require an upgrade of his underlying discharge in order to secure such benefits.

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.



      _______ _   _______   ___
               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)                                         AR20140000564



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ABCMR Record of Proceedings (cont)                                         AR20140000564



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