IN THE CASE OF:  	  

		BOARD DATE:  4 June 2015	  

		DOCKET NUMBER:  AR20140016161 


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 (UD) be upgraded.

2.  The applicant states his period of absence without leave (AWOL) commenced when he was unable to get a return flight to Vietnam from Hawaii following two weeks rest and recuperation leave in March 1971.  He checked in with the Air Force on a regular basis in attempts to return to his unit but as he did not have his uniform or orders they would not assist him.  He was told that no military flights were available to Vietnam and without orders he would have to pay for his own way back.  Since he was not getting paid, he could not purchase a ticket.  He was living on the street because the military would not help him.  In December 1971, he was notified that his father had terminal cancer.  Civilian friends assisted him in getting a ticket home to Puerto Rico.  When he got to San Juan he checked in at Fort Buchanan looking for help.  He was hospitalized for schizophrenia and nervousness.  The last communication he had with the military was on 29 March 1972.  He did not receive his discharge until 1975 following President Ford's amnesty program.  He states he always kept in contact with the military during the entire time he was reported AWOL.  He was suffering from a medical condition at the time of discharge.

3.  The applicant provides copies of –

* a 31 October 1970 physical profile
* a 31 January 1971 pay voucher 
* a 30 December 1971 inquiry to the National Personnel Center by his mother
* a 29 March 1972 request for information reply
* five letters from the American Red Cross (in Spanish), 14 January 1971, 21 October 1971, 14 December 1971, 16 December 1971, and 19 September 1972
* U.S. Army Garrison, Fort Buchanan Special Orders Number 22, dated 31 January 1975
* 3 February 1975 request for discharge for the good of the service
* his 3 February 1975 DD Form 214 (Report of Separation for Active Duty)
* a 24 March 1975 State Headquarters for Selective Service Reconciliations Service letter
* his vaccination record

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 enlisted on 8 October 1969, completed training, and was awarded the military occupational specialty 36K (Field Wireman).

3.  He was assigned to duty in Vietnam on 1 June 1970.

4.  On 31 October 1970, the applicant received a permanent profile precluding him from service in an area where malaria was prevalent.

5.  The applicant was reported AWOL from 25 January 1971 to 7 February 1971, with return to military control on 8 March 1971.

6.  His vaccination record shows he left Hawaii on 10 March 1971.  

7.  The applicant was reported AWOL from his unit on 20 March 1971 and dropped from the rolls on 29 April 1971, as a deserter from a combat theater.


8.  The American Red Cross letters (in Spanish) state as follows –

* 14 January 1971 – the Red Cross representative reported the applicant was in good health 
* 21 October 1971 – the Red Cross was unable to locate the applicant at the address given and their case would be closed if their services were no longer needed
* 14 December 1971 – the Red Cross located the applicant in Hawaii; he was going to Puerto Rico on 20 December 1971 via Pan American airlines 
* 19 September 1972 – the applicant had some outstanding questions pending with the Red Cross office

9.  On 31 January 1975, special orders show he returned to military control at Fort Buchanan, Puerto Rico under the authority of Presidential Proclamation Number 4314. 

10.  On 3 February 1975, the applicant requested discharged for the good of the service pursuant to Presidential Proclamation Number 4313.  He acknowledged that his absence was willful and persistent for which he was subject to trial by court-martial for a violation of the Uniform Code of Military Justice.  He further acknowledged he made his request under his own free will and was not subject to any coercion by any person.  He was advised he would be deprived of all service benefits and ineligible for State and Federal veterans' benefits.  He acknowledged he would receive a UD and agreed to complete alternate service. 

11.  The applicant was discharged with a UD on 3 February 1975.  He had 1 year, 5 months, and 16 days of active service with 202 days of lost time prior to his normal expiration of time in service (ETS) and 1,209 days of lost time post normal ETS.  His awards include the Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

12.  On 3 May 1976, having completed his alternate service obligation, he was issued a DD Form 1953A (Clemency Discharge Certificate) pursuant to Presidential Proclamation Number 4313.

13.  On 16 April 1979, the Army Discharge Review Board denied the applicant's request for an upgrade.

14.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to 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.  Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.  By this memorandum, signed as he left office, President Ford extended the Vietnam Era Clemency Program to provide that approximately 700 deserters who had been wounded in Vietnam or who had earned an award for valor could have their discharges upgraded to under honorable conditions.  

15.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

16.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Paragraph 3-7c states that a UD discharge was issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  
17.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The Red Cross letters provide no clarifying information as to the applicant's status during his extended AWOL period.  

2.  After an extensive AWOL period, the applicant requested and was granted a discharge under Presidential Proclamation Number 4313 and completed the alternative service to have his civil rights restored with a clemency discharge in 1976.  

3.  He did not receive a discharge review under the SDRP discharge criteria because he did not complete a normal tour of duty in Southeast Asia, was not wounded in action, was not in receipt of a personal award for valor, had not received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.

4.  There are no medical records available to indicate that the applicant was treated for mental, emotional, psychological or psychiatric problems while in the service.

5.  The applicant has not provided and the record does not contain any evidence to corroborate his contentions that – 

* he kept in contact with the military in either Hawaii or Puerto Rico during his period of AWOL 
* his father had terminal cancer
* he was hospitalized for schizophrenia and nervousness during his period of AWOL

6.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant's character of the discharge is commensurate with the applicant's overall record of military service.  As he did not provide evidence to the contrary, there is an insufficient evidentiary basis to upgrade his discharge at this time.

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)                                         AR20140016161



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ABCMR Record of Proceedings (cont)                                         AR20140016161



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