IN THE CASE OF:  	  

		BOARD DATE:  2 July 2015	  

		DOCKET NUMBER:  AR20140019229 


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 in effect an upgrade of his undesirable (UD) discharge to a general discharge in accordance with Title 10, U.S. Code (USC), section 1553, which is the law governing upgrading military discharges.

2.  The applicant states he is requesting the Army Review Boards Agency (ARBA) reconsider his request based on inequitable facts or issues which affected him on a personal level during his career in the military. 

3.  The applicant provides a letter from ARBA and two articles on the Proclamation Number 4313.

CONSIDERATION OF EVIDENCE:

1.  Title 10, USC, 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 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 insufficient bases to waive the statute of limitations.
2.  The applicant was inducted into the Army of the United States on 23 March 1970.  He did not complete advanced individual training for award of a military occupational specialty.  He was advanced to pay grade E-2 on an unknown date. 

3.  On 18 August 1970, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 13 through 15 August 1970.

4.  He was again reported AWOL on 25 November 1970 and returned to military control on 23 September 1971.

5.  On 23 September 1971, a DD Form 458 (Charge Sheet) was completed by the Commander, Personnel Control Facility, Army Training Center, Fort Dix, NJ.  The applicant was charged with one specification of being AWOL from 25 November 1970 through 23 September 1971.

6.  On 27 September 1971, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted P3ersonnel), chapter 10, for the good of the service – in lieu of trial by court-martial for charges being preferred against him.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge (UD) Certificate and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 7 October 1971, the applicant's company commander recommended the applicant be discharged under chapter 10 with an UD.  He stated the applicant had been medically examined and was qualified for separation and flagging action had been initiated against the applicant.   

8.  On 12 October 1971, a Staff Judge Advocate recommended approval of the applicant's request.

9.  On 20 October 1971, the separation authority approved the applicant’s request and directed the issuance of an UD and that the reason and authority for his discharge be shown as AR 635-200, SPN [Separation Program Number] 246 (discharge for the good of the service) on the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

10.  Accordingly, he was discharged in pay grade E-1, on 1 November 1971.  He was credited with completing 9 months and 12 days of total active service and had 303 days of time lost due to AWOL.  His service was characterized as under other than honorable conditions and he was issued a UD Certificate.  Item 11c (Reason and Authority) of his DD Form 214 lists the entry, "AR 635-200, SPN 246."

11.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) does not list any awards during his period of service.

12.  He provided copies of the following:

   a.  A letter, dated 4 November 2013, wherein ARBA advised him that the Army Discharge Review Board did not have the authority to process applications received from former service member after 15 years from the date of discharge.  He was advised to apply to the ABCMR.

   b.  Two articles on the Presidential Proclamation 4313 which contained information pertaining to the program, its criteria, and eligibility.

13.  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 public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Alternate service was to be performed under the supervision of the Selective Service System (SSS).  The individual was responsible for finding a job that met the requirements of the program.  He would obtain the approval of his State Selective Service officials regarding the job and reports would be furnished periodically as to how he was performing.  When the period of alternate service was completed satisfactorily, the SSS notified the individual's former military service and the military issued the actual clemency discharge.  A clemency discharge did not restore veterans' benefits; rather, it restored Federal and, in most instances, State civil rights which might have been denied due to the less than honorable conditions discharge.  If a participant of the program failed to complete the period of alternative service, the original characterization of service would be retained.

14.  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.  In the absence of compelling reasons to the contrary, this program, known as the DoD Special Discharge Review Program (SDRP), required 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, been awarded a military decoration other than a service medal, 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.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation 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 Soldier was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge UOTHC, 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.  A UD would normally be 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.

16.  Title 10, USC, section 1553, states the Secretary concerned shall, after consulting the Secretary of VA, establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative.  A motion or request for review must be made within 15 years after the date of the discharge or dismissal.  With respect to a discharge or dismissal adjudged by a court-martial case tried or reviewed under chapter 47 of this title (or under the UCMJ (Public Law 506 of the 81st Congress)), action under this subsection may extend only to a change in the discharge or dismissal or issuance of a new discharge for purposes of clemency. A board established under this section may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  He acknowledged the reason for his discharge and that he could be furnished an UD Certificate.  He waived his rights and elected not to submit a statement in his own behalf.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his available military records contain no evidence which would serve as a basis for an upgrade of this discharge.  The evidence shows his misconduct of a lengthy period of AWOL diminished the quality of his service below that meriting a general or a fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the requested relief.

4.  There is no evidence he voluntarily requested discharge for the good of the service pursuant to Presidential Proclamation 4313.  There is also no evidence he was accepted into and completed the program.  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 change 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.

5.  There is further no evidence he met the criteria for an upgrade of his general discharge under the DoD SDRP or that he applied for and was denied an upgrade.





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)                                         AR20140019229





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ABCMR Record of Proceedings (cont)                                         AR20140019229



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