BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017155 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017155 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017155 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD) or a general discharge (GD). 2. The applicant states: * he submits his petition in an effort to receive a Department of Veterans Affairs (VA) pension based on the HD he received in May 1970 after 18 months of service * the VA barred his receipt of a pension because of his UOTHC discharge, which is wrong and unjust considering the circumstances and particulars that led up to this discharge * he reenlisted in the Army for the sole reason of remaining in Korea with his unit for a consecutive and continuing 13-month tour, which the battalion reenlistment noncommission officer (NCO) promised him before he signed the reenlistment papers * he needed the extra tour and extra time to marry a Korean national, but two weeks after reenlisting, he received orders assigning him to Fort Ord, California * at that time, the Army unofficially did everything it could to discourage such liaisons and it his belief the Army directed his assignment to Fort Ord, California, to save him from himself, which was not their call to make * he patrolled fences, helped man bunkers, performed night ambushes inside and alongside the creepiest place on earth in the Korean demilitarized zone (DMZ) for 13 months, which he believes is worth something and, if not, his entire military experience was a gross of waste of time * he is not looking for medical, educational, or housing benefits, but instead, a pension to help subsidize his social security benefits 3. The applicant provides: * an Honorable Discharge Certificate, dated 14 May 1970 * two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) issued 14 May 1970 and 24 March 1975 * Department of Veterans Affairs (VA) letter, dated 21 July 2015 * self-authored statements * DD Form 4 (Enlistment Contract – Armed Forces of the U.S.) * Document titled “Certificate” 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 complete military record is not available to the Board for review. This case is being considered based on the applicant's DD Forms 214 and documents contained in a very limited file provided by the National Personnel Records Center (NPRC). 3. The applicant was inducted into the Army of the United States (AUS) on 17 October 1968. Upon completion of initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman). 4. His NPRC File contains and he provides an undated document titled “Certificate," which shows, “since the date of his court-martial, 27 [December] 1969” the applicant: * had done a complete turnabout in his attitude toward the Army and his superiors * clearly demonstrated that he was quite fit for further military service in the Regular Army * caused no disciplinary problem of any type * obeyed all his superiors in a military manner and did not question their authority or intent in giving him orders * was very cooperative and always displayed a positive attitude * was a model of correctness and had excellent conduct and efficiency * would bring good credit upon the Regular Army if allowed to reenlist 5. On 14 May 1970, the applicant was honorably discharged for the purpose of immediate reenlistment having completed 1 year, 6 months, and 5 days active duty service. The DD Form 214 issued at that time shows he accrued 21 days of time lost during following three periods: * 12 November 1969 * 23 - 24 November 1969 * 29 December 1969 - 18 January 1970 6. On 15 May 1970, the applicant enlisted in the Regular Army and served until he was discharged UOTHC on 24 March 1975. The DD Form 214 issued to him at that time shows: * he was discharged for the good of the service by reason of willful and persistent unauthorized absence pursuant to Presidential Proclamation Number 4313 and a Department of Defense memorandum * he accrued 1,053 days of time lost before his normal expiration term of service (ETS) * he accrued 673 days of time lost after his normal ETS * he completed 1 month and 7 days of creditable active duty service during the period covered by the DD Form 214 (15 May 1970 – 24 March 1975) REFERENCES: 1. 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 veteran 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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. DISCUSSION: 1. The available record is void of the specific facts and circumstances surrounding the applicant's discharge processing; however, it does contain a DD Form 214 that identifies the reason and characterization of his discharge. This document confirms the applicant was discharged for the good of the service due to willful and persistent unauthorized absence pursuant to Presidential Proclamation Number 4313 and that he received an UOTHC discharge. This separation document carries with it a presumption of government regularity in the separation process. 3. In connection with such a discharge, the applicant would have been afforded an opportunity to receive an under other than honorable conditions discharge instead of a trial by court-martial which could have led to a bad conduct or dishonorable discharge. 4. The applicant's final DD Form 214 shows he accrued 1,053 days of lost time prior to his ETS due to AWOL, and he accrued 673 days of time lost due to AWOL after his normal ETS. In the absence of his complete separation packet and based on the available evidence, it appears his service did not meet the standards of acceptable conduct and performance of duty for Army personnel, thus rendering his service unsatisfactory. With 1,726 total days of lost time, his service subsequent to his enlistment in the Regular Army did not conform to the standards of acceptable conduct required for an HD or GD. The characterization of service he received was commensurate with the reason for his discharge. 5. Absence evidence to the contrary, it is presumed the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017155 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017155 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2