BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140004475 


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 under other than honorable conditions (UOTHC) discharge.

2.  He states:

	a.  He was drafted in March 1969, though he didn't think he would be inducted because he had been shot in the leg.  He also had vision problems and his hearing was not good.  He passed the physical and went to basic training at Fort Polk, LA.  He was unable to qualify on the rifle range due to bad vision and a physician at Fort Polk arranged for him to go to Fort Sam Houston, TX, for an operation.  He was there for 2 weeks after which he was sent home to Illinois to recover on convalescent leave.  

	b.  After 2 days, his commanding officer at Fort Polk called and told him he couldn't remain at home.  He was to report back to his unit, which he did.  When he returned to Fort Polk, they didn't know what to do with him.  After a couple weeks, no one knew what was going to happen.  A drill sergeant told him he didn't have any business being there and recommended that he go home until they knew what to do with him.  The drill sergeant stated he should be medically discharged, but they didn't know what to do.  He thought about it and went home.  He realized he should have signed out with proper permission, but everyone told him he shouldn't be there and he was very frustrated.


	c.  He went home and never heard what he should do; eventually he was picked up and sent to Fort Riley, KS, to be discharged.  He has never been in trouble with the law, and he worked as a heavy equipment operator for 33 years.  He regrets the decision he made.  

3.  He provides his DD Form 214 (Report of Separation from Active Duty).

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 3 March 1969, the applicant was inducted into the Army of the United States.  Prior to his induction, he was given a rating of "2" for physical profile rating factor "E" (eyes).  

3.  A DA Form 8-274 (Medical Condition – Physical Profile Record), dated 17 March 1969, shows he was given a permanent rating of "2" for physical profile rating factor "E."  The form shows the rating was based on a "lazy right eye," and assignment requiring use of depth perception was to be limited.  The form noted that firing with the right eye was not possible.  

4.  A review of his service medical records shows he was seen by the Ophthalmology Clinic at Fort Polk in March and April 1969.  On 7 April 1969, he was scheduled for an appointment at the Ophthalmology Clinic, Brooke Army Medical Center (BAMC), Fort Sam Houston.  He was hospitalized from 7 to 14 April 1969, during which time he underwent a procedure to treat erosion of the corneal epithelium in his right eye.  He was released to duty and his rating for physical profile factor "E" was upgraded from "2" to "1."

5.  On 30 April 1969, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to be at his appointed place at the prescribed time.  

6.  On 5 May 1969, he departed his basic training unit in an absent without leave (AWOL) status and remained AWOL through 15 October 1970.  Records created at that time show he had stated his girlfriend was pregnant and he wanted to go home to get married.  He was informed that if he could get the Red Cross to verify that his girlfriend was pregnant, he would be granted leave to go home and marry.  

7.  On 14 June 1971, he went AWOL again, and he remained AWOL until he returned to military control on or about 21 February 1975.  

8.  On 25 February 1975, he consulted with counsel who advised him of the nature of the offenses for which he could be tried, the maximum possible punishment that could be imposed, the possible consequences of an undesirable discharge, the nature and effect of his pledge to perform alternate service, and of the procedures and rights available to him.  

9.  After consulting with counsel, he voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313 (PP 4313), dated 16 September 1974.  He acknowledged he understood that 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 UCMJ, which could lead to the imposition of a bad conduct or dishonorable discharge.  He further acknowledged:

* he understood he would be discharged UOTHC and receive an Undesirable Discharge Certificate
* he understood the adverse nature of such a discharge and the possible consequences thereof
* as a result of such a discharge, he would be deprived of all service benefits and be ineligible for all Veteran's Administration benefits
* he could be deprived of rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge
* within 15 days of receipt of the Undesirable Discharge Certificate, he was to report to his State Director of Selective Service to arrange for performance of alternate service
* satisfactory completion of alternate service would be acknowledged by issuance of a Clemency Discharge Certificate
* a Clemency Discharge Certificate would not alter his ineligibility for benefits predicated upon his military service

10.  In conjunction with his request for discharge, he signed a document entitled Elections of Military Rights.  He acknowledged he fully understood that he had the opportunity for military counsel to inspect his military records for any irregularities, inconsistencies, or information beneficial to his case that might act as either a defense or in mitigation to any administrative or judicial actions that might be pursued.  After being advised by military counsel, he indicated he did not desire inspection of his military records.  

11.  On 25 February 1975, he also signed a Reaffirmation of Allegiance and Pledge to Complete Alternate Service.  He acknowledged he had voluntarily absented himself from his military unit without authorization in contravention of the oath he took upon entering military service.  He agreed to complete a 
24-month period of alternate service.   

12.  In a statement to the Board for Alternate Service, he stated the reason for his absence was that he was recycled in basic training because his drill sergeant kept sending him to the dispensary because he could not qualify at the rifle range.  He also stated he "didn't like the Army at that time."  

13.  On 25 February 1975, he was discharged with his service characterized as UOTHC.  He completed 10 months and 12 days of total active service.  He had 547 days of lost time prior to his normal expiration of term of service (ETS) date and 1,314 days lost after his ETS date.

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

15.  PP 4313 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 UOTHC discharge 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 Department of Veterans Affairs.  




16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.

	b.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested discharge for the good of the service pursuant to the provisions of PP 4313 in lieu of trial by court-martial.  He was well advised of the consequences of his request, and he declined the opportunity to have military counsel inspect his military records for any irregularities, inconsistencies, or information beneficial to his case.  All requirements of law and regulation were met and his rights were fully protected throughout the discharge process.  

2.  The evidence of record confirms that he had an eye problem when he entered military service; however, the evidence also shows the problem was surgically corrected.  There is no evidence corroborating his statement that a drill sergeant recommended that he go home until they knew what to do with him.  Contrary to his version of events, the evidence indicates he went AWOL after learning his girlfriend was pregnant.  The evidence also shows he returned to military control in October 1970, went AWOL again in June 1971, and remained AWOL until returning to military control in February 1975.  

3.  Because of his willful and persistent unauthorized absence, his service was unsatisfactory.  There is no basis upon which to grant 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)                                         AR20140004475



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004475



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1