IN THE CASE OF: BOARD DATE: 2 July 2014 DOCKET NUMBER: AR20130019359 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 under other than honorable conditions discharge. 2. The applicant states he performed maintenance duties at the Manchester, Tennessee Prosecuting Attorney's office in 1975 as part of an agreement to have his discharge upgraded to honorable. They were supposed to send the paperwork to have this done. He served at a time when people did not respect Vietnam veterans. He worked for 8 hours a day doing maintenance and his discharge should have been upgraded. 3. The applicant does not provide any evidence. 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 in the Regular Army (RA) for a period of 3 years on 15 October 1970 and held military occupational specialty 62E (Engineer Heavy Equipment Operator). He was honorably discharged on 15 June 1971 for the purpose of immediate reenlistment. He was assigned to the 82nd Engineer Battalion, U.S. Army Europe at the time. 3. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service shows he competed 8 months and 1 day of active service. He was awarded or authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar. 4. He reenlisted in the RA for 3 years on 16 June 1971. He would later serve in Vietnam with the 43rd Engineer Company from 13 August 1971 – 14 February 1972. While in Vietnam, on 24 December 1971, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being disrespectful in language toward a superior noncommissioned officer. 5. Based on his service in Vietnam, he was awarded or authorized the Vietnam Service Medal, Republic of Vietnam Campaign Medal with 1960 Device, Republic of Vietnam Gallantry Cross with Palm Unit Citation, one overseas service bar, and Army Commendation Medal. 6. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, he appears to have been reported absent without leave (AWOL) on 17 March 1972 and he returned to military control on 22 January 1975. His records contain: a. An Optional Form authenticated with his signature. He indicated that he has been told by legal counsel about the President's Clemency program. Based on what he had been told, he desired to sign an Affirmation of Allegiance, a Pledge of Public Service and accept an Undesirable Discharge. b. An Election of Military Rights, dated 23 January 1975, wherein he indicated he had the opportunity to inspect his records for any irregularities, inconsistencies, or information that may be beneficial to his case and after having been advised by his military counsel, he indicated he did not desire his military records be checked. c. A Statement to the Board for Alternate Service, wherein he submitted matters to the Alternate Service Board for consideration in their determination of the number of months of alternate service that he must serve. He indicated he voluntarily submits this statement with full knowledge and understanding that he is not obligated to make this statement or complete any part of this form. He left the reason for being absent from military service blank; he also left the employment during his absence from military service blank; and stated "I was in Vietnam from 71 to 72 and I do not want to make a statement." d. A Joint Alternative Service Board Agreement that shows the Joint Alternative Service Board that was established by Presidential Proclamation Number 4313 reviewed his official records and by a majority of vote it was determined he would be required to serve 12 months of alternative service. He had completed 6 months of service under hostile fire conditions but he was also absent without leave (AWOL) from 17 March 1972 to 22 January 1975. e. A DD Form 214 that shows he was discharged on 23 January 1975 for the good of the service by reason of willful and persistent unauthorized absence pursuant to Presidential Proclamation Number 4313 and that he had agreed to serve 12 months of alternative service. His character of service is shown as under other than honorable conditions. This form further confirms he completed 9 months and 8 days of creditable active service and had 819 days of lost time, during the period covered by this DD Form 214. f. A separate document, as per his request, explaining the narrative reason for separation, the authority, and the reenlistment code. 7. On 10 June 1976, by letter, the Reconciliation Service Division Manager, Selective Service System, stated: a. The Director has terminated the applicant from enrollment in the Reconciliation Service Program. He did not complete his required period of alternate service. After he was processed by the Joint Clemency Processing Center, he enrolled in the Reconciliation Service program. The requirements for this program were explained to him and efforts were made to provide him with an opportunity to satisfactorily complete his alternate service. b. The decision to terminate him from active enrollment in the program was based on the following information. He commenced work on two approved jobs. He was dismissed from the first for unsatisfactory performance and he left the other without authorization. 8. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 9. Army Regulation 635-200 sets forth the policy for administrative separation of enlisted personnel. Chapter 10 of that regulation provides 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. a. 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. b. 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. 10. 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. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any Veterans Administration (VA) benefits. Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained. DISCUSSION AND CONCLUSIONS: 1. The available evidence shows the applicant departed AWOL on 17 March 1972 and he returned to military control on 22 January 1975. Upon his return from desertion, he was given the opportunity to request discharge for the good of the service with the understanding that he would receive an undesirable discharge. In exchange, he agreed to complete 12 months of selected service and upon successful completion of the specified alternative service, he would be issued a clemency discharge. 2. He failed to complete his agreed 12 months of alternate service. The Director had terminated him from enrollment in the Reconciliation Service Program because he did not complete his required period of alternate service. Although the requirements for this program were explained to him and efforts were made to provide him with an opportunity to satisfactorily complete his alternate service, he failed to do so. He commenced work on two approved jobs. He was dismissed from the first for unsatisfactory performance and left the other without authorization. 3. Completion of this program would have allowed him to receive a clemency discharge. The clemency discharge would not have affected his underlying discharge and would not entitle him to any VA benefits. Rather, it would have restored federal and possibly state civil rights which may have been denied due to the less than honorable discharge. Since the applicant failed to complete the period of alternative service the original undesirable characterization of service is retained. Therefore, he is not entitled to 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) AR20130019359 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130019359 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1