PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             9 October 2003                  
	DOCKET NUMBER:    AR2003090232

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance. 		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Robert J. Osborn		Member	
	Ms. Eloise C. Prendergast . 		Member	

	The applicant and counsel if any did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                            records
	Exhibit B -  Military Personnel Records (including
	                 advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to an general, under honorable conditions (GD).  

3.  The applicant states, in effect, that he is deserving of an upgrade of his discharge given his record of combat service and based on the President granting pardons to all veterans.  

4.  The applicant’s military records show that he was inducted into the Army and entered active duty on 7 May 1968.  He was trained and served in military occupational specialty (MOS) 11D (Armor Intelligence Specialist).  He also served in the Republic of Vietnam (RVN) from 31 October 1968 through 3 August 1969, and received “Excellent” conduct and efficiency ratings during this tour.  The record also confirms that the highest rank he attained while serving on active duty was specialist/E-4.  

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains copies of several orders that awarded the applicant several combat related awards during his tenure of assignment in the RVN.  It has a copy of orders awarding him the Combat Infantryman Badge (CIB) on 2 February 1969.  It also has a copy of General Orders (GO) that awarded him the Army Commendation Medal (ARCOM) 1st Oak Leaf Cluster for his outstanding achievement in connection with military operations against a hostile force for the period November 1968 through April 1969. 

6.  The MPRJ also has a copy of GO on file that awarded the applicant the Purple Heart, for wounds he received in connection with military operations against a hostile force on 12 May 1969.  Further, it has copies of GO that awarded him Bronze Star Medal (BSM) for meritorious achievement in connection with military operations against a hostile force during the period November 1968 through June 1969; and a second BSM for outstanding achievement in connection with military operations against a hostile force during the period June through July 1969.  The MPRJ reveals no disciplinary history on the applicant prior to his completing his tour in the RVN.  

7.  On 1 November 1969, the applicant was placed in an absent without leave (AWOL) status when he failed to report to his unit at Fort Lewis, Washington, at the completion reassignment leave.  

8.  On 7 December 1971, a court-martial charge sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for two specifications of AWOL for the periods from on or about 1 November 1969 to on or about 23 February 1970; and from on or about 19 March 1970 to on or about 21 September 1971.  

9.  On 9 December 1971, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad-conduct or dishonorable discharge, the effects of his request for discharge, and of the rights available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  The applicant provided a letter with an explanation of the mitigating factors that contributed to his AWOL related misconduct.  He stated that he faced significant family problems that required him to provide support for his mother and three siblings.  He also claimed that he tried to receive help for these problems through Army channels, but no one responded.  As a result, he was forced to again go AWOL in order to provide support for his family.  He states that the entire time he was AWOL, he was working and supporting his family.  

10.  On 22 December 1971, the separation authority approved the applicant’s request for discharge.  He directed that the applicant be separated under the provisions of chapter 10, Army Regulation 635-200 for the good of the service, in lieu of court-martial, and that he receive UD.  On 23 December 1971, the applicant was discharged accordingly.

11.  There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15-year stature of limitations.

12.  The applicant provides three letters of support from friends.  These letters all contain language attesting to the applicant’s outstanding character and good citizenship.  They also confirm that when the applicant returned from the RVN, he faced significant family problems.  These problems included his wife leaving him and leaving behind their two children for him to care for and raise.  They also confirm that he has done a fine job raising his children on his own and he has remained a respected member of his church and his community.  

13.  In Presidential Proclamation Number 4313 (PP # 4313), dated 16 September 1974, the President announced a clemency program designed to provide deserters an opportunity to work their way back into American society.  This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between 4 August 1964 and 28 March 1973.  Under this program, eligible enlisted deserters were offered the opportunity to request an undesirable discharge for the good of the service if they agreed to perform alternate service under the supervision of the Selective Service System.  Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.  

14.  Clemency Discharges issued pursuant to PP # 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs.  The Army Discharge Review Board adapted the policy that a Clemency Discharge would be considered by a board in its deliberations but that the discharge per se did not automatically require relief be granted.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  Although an under other than honorable conditions is normally considered appropriate, an honorable or general discharge is authorized.  At the time of the applicant’s separation the regulation provided for the issuance of an UD.

16.  On 4 April 1977 the Department of Defense (DOD) directed the Military 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 Special Discharge Review Program (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, 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.  It also allowed for the consideration of other factors, including personal problems, that 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.

CONCLUSIONS:

1.  The evidence or record establishes that the applicant was awarded two BSMs that were not included in the DD Form 214 issued to him at discharge.  Thus, the the Board determined that it would be appropriate to add these authorized awards to the applicant’s DD Form 214 at this time.  

2.  The applicant requested an administrative discharge in order to avoid a trial by court-martial and the punitive discharge which may have resulted, and that he was discharged accordingly in accordance with the applicable regulation in effect at the time.  

3.  The evidence of record confirms that the applicant served in the RVN and earned both the CIB and the PH as a result of his combat action against enemy forces.  It also shows that he earned three individual combat achievement awards while serving in the RVN, which included two awards of the BSM and an award of the ARCOM.  Further, as evidenced in his statement at the time of discharge, he was faced with family problems that he felt compelled to deal with by going AWOL.  

4.  Further, as confirmed in the three supporting third-party statements provided with his application, upon his return from the RVN, the applicant also had to face his wife leaving him and the prospect of raising two children on his own.  These character references also verify that the applicant has been a productive citizen and stellar member of his community.  

5.  Notwithstanding his extensive AWOL related misconduct, given his outstanding record of combat service and his excellent post service conduct, the Board finds it would be appropriate to provide relief in the spirit of clemency put forth in PP #4313 in the interest of compassion and equity.  However, even in applying these standards, the Board finds an upgrade of the applicant’s discharge to fully honorable discharge is still not warranted.  The applicant’s extensive AWOL related misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge. 

6.  The Board does find that in giving full consideration and recognition to the applicant’s outstanding honorable combat service, taking into account the mitigating factors in this case, and considering the applicant has suffered the effects of his bad discharge for over 30 years, some form of relief is in order.  Therefore, in the interest of equity and compassion, the Board determined that it would be appropriate to upgrade the applicant’s discharge to a GD at this time. 

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the individual concerned received a general, under honorable conditions discharge on 23 December 1971, in lieu of the Undesirable Discharge of the same date he now holds; and by providing him a corrected separation document that reflects this change.

2.  That so much of the application as is in excess of the foregoing be denied.
 
BOARD VOTE:  

_ECP___  ___RO__  __RJO__    GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor
		    CHAIRPERSON

INDEX

CASE ID	AR	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.