IN THE CASE OF:  	  

		BOARD DATE:  6 November 2014	  

		DOCKET NUMBER:  AR20140004615 


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 “general” discharge to an honorable discharge.

2.  The applicant states that he served honorably in Vietnam and was wounded in action.  He was awarded the Purple Heart, Air Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and National Defense Service Medal.  He used poor judgment when he was 19 years of age.  His discharge was inequitable because it was based on one incident over his 28 months of active duty service that included 12 months in Vietnam.

3.  The applicant provides a copy of his 13 February 1976 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.  The applicant was inducted into the U.S. Army on 3 May 1966.  At the time, he was 19 years of age.  Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 17 October 1966, he deployed overseas to serve in Vietnam and was assigned to Company B, 5th Battalion, 7th Cavalry, 1st Cavalry Division (Airmobile).  He was promoted to specialist four/pay grade E-4 on 8 April 1967.

4.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably discharged on 25 July 1967 to enlist in the Regular Army (RA).  He had completed 1 year, 2 months, and 23 days of net active service during this period that included 9 months and 9 days of foreign service.

5.  On 26 July 1967, he reenlisted in the RA for a period of 3 years.

6.  On 15 October 1967, he went absent without leave (AWOL).

7.  On 20 November 1974, the Commander, U.S. Army Enlisted Records Center, Fort Benjamin Harrison, IN, provided notification to the applicant's mother and also his brother.  The purpose was to solicit their assistance in advising the applicant about his eligibility to participate in the Clemency Program established by Presidential Proclamation Number 4313, dated 16 September 1974.  The commander informed them that the applicant had not contacted or reported to the U.S. Army Enlisted Records Center at Fort Benjamin Harrison with regard to the clemency program.  They were encouraged to contact the applicant to provide him the information and also advised that the program would terminate on 31 January 1975.

8.  The applicant returned to military control on 28 January 1976.

9.  On 28 January 1976, court-martial charges were preferred against him for being AWOL from on or about 15 October 1967 to on or about 27 January 1976.

10.  On 28 January 1976, he consulted with legal counsel.  He was informed of the charges against him for violations of the Uniform Code of Military Justice and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  His request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might be discharged under conditions other than honorable, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life if he were given an undesirable discharge (under other than honorable conditions).

	c.  He was also advised that he could submit any statements he desired in his own behalf.  He elected not to submit statements in his own behalf.

	d.  He and his counsel signed the document.

11.  His immediate and intermediate commanders recommended approval of his request and recommended the issuance of an Undesirable Discharge Certificate.

12.  The separation authority approved his request for discharge and directed he receive an Undesirable Discharge Certificate.

13.  On 13 February 1976, he was discharged from the Army 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.  The DD Form 214 he was issued shows he:

   a.  was awarded the Purple Heart, Air Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge with Machinegun and Grenade Bars, and one Overseas Service Bar;

	b.  completed 3 months and 5 days of net active service during this period;

	c.  had 3,023 days of time lost; and

	d.  was issued an Undesirable Discharge Certificate and an under other than honorable conditions characterization of service.

14.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.  There is also no evidence showing the applicant availed himself of the clemency program, although this would not have changed the reason and character of the applicant's discharge.

15.  Presidential Proclamation 4313 was issued on 16 September 1974.  It provided, in pertinent part, that individuals absent from the military for a long period of time, primarily in connection with the war in the Republic of Vietnam, could avail themselves of a clemency program.  If they returned to military control, swore allegiance again to the United States and agreed to perform a period of alternate service under the supervision of the Selective Service, a Clemency Discharge would be given in the name of the President.  In essence, this was a neutral discharge and a pardon issued by the President of the United 
States.  However, the individual would normally receive an undesirable discharge from the military service.  Service discharge review boards and correction boards are not empowered to change the Clemency Discharge, but may review the underlying circumstances of the discharge.

16.  Army Regulation 635-200, in effect at the time of the applicant's discharge, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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 contends that his discharge should be upgraded because he was young, he used poor judgment, and his discharge was based on just one incident during 28 months of active duty service.

2.  Considering the applicant successfully completed training and more than
9 months of overseas service in Vietnam, and that he was issued an honorable discharge to enlist in the RA, his contention that he was immature is not supported by the evidence of record.  Additionally, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The accomplishments of the applicant during his prior period of honorable service (from 3 May 1977 through 25 July 1967, which included more than nine months of duty in Vietnam) are noted.  It is also noted that the applicant was issued an honorable discharge for this period of service.  However, subsequent to this period of service, specifically his three remaining months in Vietnam, his service was not so meritorious as to overcome the applicant's period of AWOL that was in excess of more than 8 years and 3 months.

4.  His request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

5.  The evidence of record shows that the applicant completed 3 months and
5 days net active service during the period of service under review.  He also had 3,023 days of time lost during this period.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

6.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting 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)                                         AR20140004615



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ABCMR Record of Proceedings (cont)                                         AR20140004615



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