RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 August 2007 DOCKET NUMBER: AR20070002755 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. Ms. Catherine C. Mitrano Director Mr. John J. Wendland, Jr. Analyst The following members, a quorum, were present: Mr. Paul M. Smith Chairperson Mr. Rodney E. Barber Member Mr. Rowland C. Heflin Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his undesirable discharge be upgraded to an honorable discharge. 2. The applicant states, in effect, that he served honorably during his tour of duty in Vietnam. He also states, in effect, that he did not encounter any problems until he was sent back to the United States on medical leave and was told that due to several bouts of malaria, he would most likely be sterile and unable to have a family. The applicant further states, in effect, that he was only 17 years old at the time, still legally a minor, was devastated and traumatized by the news, and started drinking heavily to drown his pain. a. The applicant adds, in effect, that both he and his father came from large families, his father served with the 101st Airborne Division during World War II and he was proud to serve with the 101st Airborne Division in Vietnam. However, upon returning to the United States, he had major problems readjusting because the Army did not debrief him or offer him any counseling. b. The applicant states, in effect, he received an undesirable discharge as a result of being arrested in Fayetteville, North Carolina, on a charge of driving under the influence (of alcohol). He also states, in effect, that the local sheriff and his sergeant major told him to appear before the local judge and he would be returned to base. However, the judge sentenced him to 6 months in the local jail and when he was released he was told, in effect, that he would have to serve an additional 6 months in the Army to make up the lost time. The applicant asserts he was only 17 years old, was not provided counseling or guidance, and was told he could go home, if he chose; however, the consequences of that choice were not explained. c. The applicant states, in effect, that he served his country with honor in Vietnam, was given a clemency discharge in 1976, and understood that this would upgrade his undesirable discharge, but he has since learned this is not the case. The applicant adds, in effect, that he is doing well in his current marriage with a wonderful wife and children and has an excellent reputation in his new community. The applicant concludes by respectfully requesting upgrade of his discharge to an honorable discharge. 3. The applicant provides a self-authored statement, dated November 2006; a letter written by his sister, Ms. Mary Lou P___, dated 13 November 2006; DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 26 September 1969; and DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty), dated 16 January 1976. 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’s military service records contain a DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated 9 August 1966. This document shows, in pertinent part, that the applicant’s date of birth is 9 August 1949 and that his mother and father consented to the applicant’s enlistment in the U.S. Army for a period of 3 years. 3. The applicant’s military service records show he enlisted and entered active duty in the Regular Army on 16 August 1966 for a period of 3 years. At the time he was 17 years old. Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 32K (Field Wireman). 4. The applicant's military service records show that on 16 October 1967, he was assigned to Headquarters and Headquarters Company, 1st Battalion (Airborne), 327th Infantry in Vietnam. On 28 March 1968, the applicant was promoted to the rank of specialist four (temporary)/pay grade E-4; this was the highest rank he attained while serving on active duty. For his service in Vietnam the applicant was awarded the Vietnam Service Medal, Republic of Vietnam Campaign Medal with "1960" Device, and 1 Overseas Service Bar. On 20 June 1968, the applicant departed Vietnam to return to the United States. 5. The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record). Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration Term of Service]) of this document shows that the applicant was absent without leave (AWOL) 17 days, from 12 September 1967 through 28 September 1967; AWOL 6 days, from 26 October 1968 through 31 October 1968; AWOL 12 days, from 2 January 1969 through 13 January 1969; confined 1 day on 18 January 1969; confined 5 days, from 19 January 1969 through 23 January 1969; AWOL 10 days, from 24 January 1969 through 2 February 1969; confined 2 days, from 3 February 1969 through 4 February 1969; confined 2 days, from 6 February 1969 through 7 February 1969; confined 12 days, from 24 February 1969 through 7 March 1969; and confined 123 days, from 22 May 1969 through 21 September 1969. 6. The applicant's military service records contain a DA Form 20B (Insert Sheet to DA Form 20, Record of Court-Martial Conviction). This document shows that a Special Court-Martial was convened at Headquarters, Support Command, 82nd Airborne Division, Fort Bragg, North Carolina and that the applicant was charged with absenting himself from on or about 2 January 1969 until on or about 14 January 1969 and also charged with absenting himself from on or about 24 January 1969 to on or about 3 February 1969. His sentence was confinement at hard labor for 2 months (2 months suspended for 3 months); restriction for 30 days; forfeiture of $55.00 for 3 months; and reduction to private/pay grade E-1. This document also shows that the sentence was adjudged on 7 March 1969 and approved on 11 March 1969. 7. The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition. 8. On 22 July 1969, the second lieutenant serving as Commander, Headquarters and Company A, 307th Medical Battalion, 82nd Airborne Division, Fort Bragg, North Carolina, recommended that the applicant be discharged prior to his normal ETS under the provisions of Army Regulation 635-212, paragraph 6a(1), with an Undesirable Discharge Certificate. The basis for his recommendation was the applicant’s 4 occasions of AWOL and 2 civil convictions for driving under the influence of alcohol and speeding, for which he was serving a six-month sentence in civil confinement. In addition, the commander indicated that the applicant had missed reveille without a legitimate excuse on at least 6 occasions and failed to report to his appointed place of duty on 3 occasions, which resulted in punishment under Article 15. 9. On 4 August 1969, the major serving as Commander, 307th Medical Battalion, 82nd Airborne Division, Fort Bragg, North Carolina, recommended approval of the applicant’s discharge under the provisions of Army Regulation 635-212, paragraph 6a(1), and issuance of an Undesirable Discharge Certificate. 10. On 1 September 1969, the colonel serving as Commander, Support Command, 82nd Airborne Division, Fort Bragg, North Carolina, recommended approval of the applicant’s discharge under the provisions of Army Regulation 635-212, paragraph 6a(1), and issuance of an Undesirable Discharge Certificate. 11. On 22 September 1969, the lieutenant general serving as Commander, 82nd Airborne Division, Fort Bragg, North Carolina, approved discharge of the applicant from the U.S. Army under the provisions of Army Regulation 635-212, paragraph 6a(1), for unfitness and directed an Undesirable Discharge Certificate be furnished the applicant. 12. The applicant's military service records contain a DD Form 214, with an effective date of 26 September 1969. Item 26a (Non-Pay Periods Time Lost - Preceding Two Years) shows, in pertinent part, the entry "190 days.” Item 22 (Record of Service), block a (Net Active Service This Period) of the DD Form 214 shows that the applicant completed a total of 2 years, 6 months, and 27 days net service. This document also contains the reason and authority for separation and character of service and shows that the applicant was discharged under the provisions of Army Regulation 635-212, Separation Program Number (SPN) 28B, and his character of service was under conditions other than honorable. 13. Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedure and guidance in the elimination from the service of enlisted personnel who were found to be unfit or unsuitable for further military service. Paragraph 6 (Applicability) of this document states that an individual is subject to separation under the provisions of this regulation when one or more of the conditions exist; and subparagraph 1 (Unfitness) includes, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities. This Army regulation also provided, in pertinent part, that an individual separated by reason of unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 14. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents. It also established standardized policy for preparing and distributing the DD Form 214. Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214. It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders. Paragraph 31 (Item 11c - Reason and Authority) states, in pertinent part, "the authority for transfer or discharge will be entered in this item by reference to the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPN and descriptive reason for transfer or discharge." 15. Army Regulation 635-5-1 (Separation Program Numbers (SPN) Codes), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214. It identifies the SPN code of “28B” as the appropriate code to assign enlisted Soldiers discharged for unfitness who are involved in frequent incidents of a discreditable nature with civil or military authorities. 16. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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. Whenever there is doubt, it is to be resolved in favor of the individual. 17. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 18. Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service. 19. On 15 October 1971, the Army Discharge Review Board found that the applicant was properly discharged and denied the applicant's petition to upgrade his discharge. 20. 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. The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB. In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. 21. On 19 March 1976, the Chief, Notification Division, United States Department of Justice, Office of the Pardon Attorney, Washington, DC, notified the applicant that he was awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1974. 22. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, that his undesirable discharge should be upgraded to an honorable discharge based on the fact that he performed his duties and responsibilities in Vietnam to the best of his ability, was promoted, and served honorably in Vietnam for 9 months. He also contends, in effect, upon his return to the United States he was unable to cope with the experience of being in Vietnam and the long-term effect of his medical problem. However, the applicant provides insufficient documentary evidence in support of his claim. 2. The evidence of record shows that the applicant was 17 years of age at the time he enlisted in the Army; 18 years of age while serving in the Republic of Vietnam; and that he was more than 19 years of age after he returned from Vietnam, went AWOL on several occasions, and was confined by civil authorities based on his conviction for driving under the influence of alcohol. There is no evidence that indicates the applicant was any less mature or responsible than other Soldiers of the same age who returned from the Republic of Vietnam to the continental United States and successfully completed military service. 3. The evidence of record shows the applicant completed 2 years, 6 months, and 27 days net active service during the period of service under review and had 190 days (i.e., more than 6 months) of time lost during this period. The evidence of record also shows the applicant was separated for unfitness based on an extensive history of misconduct. Thus, the evidence of record confirms that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge. Moreover, the evidence of record shows that the applicant's overall quality of service during the period of service under review was not satisfactory. Therefore, the applicant is not entitled to a general discharge. 4. There is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption. Therefore, since there is no evidence of record to show that the applicant's under other than honorable conditions discharge under the provisions of Army Regulation 635-212 was not in accordance with the Army regulatory guidance in effect at the time, there is no basis to change his discharge. 5. The evidence of record shows that Clemency Discharges issued pursuant to Presidential Proclamation 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. 6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___PMS _ ___REB _ ___RCH_ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that 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. _____Paul M. Smith______ CHAIRPERSON INDEX CASE ID AR20070002755 SUFFIX RECON YYYYMMDD DATE BOARDED 2007/08/28 TYPE OF DISCHARGE UD DATE OF DISCHARGE 19690926 DISCHARGE AUTHORITY AR 635-212 DISCHARGE REASON Unfitness, Frequent Incidents of Misconduct BOARD DECISION DENY REVIEW AUTHORITY Ms. Mitrano ISSUES 1. 144.0000.0000 2. 3. 4. 5. 6.