MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 July l999         
	DOCKET NUMBER:   AR1999018674

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

	Mr. Loren G. Harrell		Director	
	Mr. Richard H. Allen 		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Ms. Debra Williams 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, upgrade of his general discharge (sic), under honorable conditions to fully honorable.

APPLICANT STATES:  The applicant presents no matters in his behalf. 

EVIDENCE OF RECORD:  The applicant's military records show:

He was inducted on 30 July 1968, at age 19, with 10 years of formal education.  He was trained as a cook, and received his high school equivalency diploma on some date in 1969. He was assigned to duties in the Republic of Vietnam (RVN) on 3 January 1969.  He had been advanced to pay grades E-2 during training, and was advanced to private first class in February 1969 and to specialist four in July 1969, while assigned to duties in the RVN.

Upon completion of his tour in the RVN in December 1969, he was assigned to Fort Benning, Georgia.  There is no indication that he ever reported, and was declared absent without leave (AWOL) on 6 February 1970.  He returned to military control on 2 June 1970 at Fort Knox, Kentucky, but went AWOL again on 26 June 1970 and was declared a deserter.  

On or about 13 February 1975, the applicant contacted officials at Fort Benjamin Harrison, Indiana, and inquired if he was eligible for participation in the Presidential Proclamation 4313 (PP 4313) Program.  He was advised that he was eligible for the program.  

Essentially, the program provided that, by turning himself in, and swearing allegiance to the United States, and agreeing to perform a period of public service, normally a minimum of 1 year, the former soldier’s deserter status would be forgiven.  He would then be administratively discharged from the Army with an undesirable discharge (UD).  However, if he successfully performed his public service, he would be issued a Clemency Discharge by the United States Government, which would restore most of his civil rights, but he still would not be eligible for most veteran benefits administered by the bureau (later department) of Veteran Affairs (VA).

The applicant took advantage of the program and turned himself into Fort Benjamin Harrison on or about 18 February 1975.  He was immediately discharged with a UD under the provisions of PP 4313.  A DD Form 214 (Report of Separation from Active Duty) was issued at that time.  He was credited with 
1 year, 6 months and 12 days active service, l75 days lost time before the end of his 2-year service obligation (expiration of term of service (ETS)) and l656 days after his ETS.  His awards and decorations included the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, with ‘60 device, and the RVN Cross of Gallantry Unit Citation with Palm.  There are no recorded indisciplines or other evidence of misconduct in his file.

On 14 September 1976, the Selective Service System certified that the applicant had satisfactorily completed his alternate service.  On 26 October 1976, his Clemency Discharge and a DD Form 215 (Correction to DD Form 214) was issued showing the issuance of the Clemency Discharge.  However, this did not changed the underlying UD he received in February 1975.  

On 4 April 1977, the Department of Defense (DOD) directed each armed service to conduct a review of discharges of former service members who were discharged between 4 August 1964 and 28 March 1973, later expanded until 1977, with an undesirable to a general discharge.  This program was entitled the DOD Discharge Review Program (Special) or SDRP.  Upgrade of such discharges to either a general or an honorable level was mandated, if the former service member met one of certain criteria, to include:  for being wounded in combat in Vietnam, for receiving a military decoration other than a service medal, for successful completion of a normal tour in Southeast Asia, for receiving an honorable discharge from a previous tour of service and for certain other criteria. On 8 October 1979, Public Law 95-126, was enacted.  It denied veteran benefits, administered by the Veterans Administration, to any former service member who was AWOL for more than 180 consecutive days, who was classified as a deserter or who was classified as a conscientious objector.  In addition, the law required the DOD to establish historically consistent, uniform standards for all discharge reviews.  The DOD was required to review all discharges previously upgraded under the SDRP, and certain other programs, utilizing these uniform standards.  This review would establish the former service member’s right to request that the VA grant favorable action on a request for veteran benefits.  If the upgrade of a favorable SDRP was not affirmed under uniform standards, the former service member would not be entitled to most VA benefits, unless he or she was otherwise entitled.  However, the upgraded discharge under the SDRP would stand for other reference purposes.  

On 28 October 1976, the applicant requested upgrade of his discharge under the SDRP.  Besides his record of completion of alternate service, he stated that he believed his discharge should be upgraded for veteran benefits.  He also stated that he had family problems of divorce and was required to remain at home to take care of his younger brothers.  On 11 September 1978, the Army Discharge Review Board (ADRB) unanimously voted to upgrade the applicant’s discharge to general, under honorable conditions.  He met one or more of the mandatory upgrade criteria of the SDRP.  A DD Form 214 showing the general discharge was issued by the Army effective 18 February 1975.  

However the same board voted three members to two members (3-2) to deny affirmation of this upgrade under current standards, as directed by Public Law 95-126.  Accordingly, the applicant does not have an affirmed upgrade of his 
UD for the purpose of veteran benefits.  Under current standards, the majority of the Board found that the matters he submitted in mitigation to his extensive period of AWOL was not considered sufficiently compelling to overcome the discharge and upgrade of his discharge from a UD to either a general or a fully honorable discharge.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board noted the favorable aspects of the applicant’s record of service to include the completion of his GED, his service in the RVN and his lack of record of indisciplines, and his completion of his alternate service under the provisions of the PP 4313 Program and the issuance of a Clemency Discharge by the United States Government.  Further, the Board took into consideration the action taken by the ADRB to upgrade the applicant’s discharge to a general discharge under the SDRP.

3.  However, the Board also noted that the ADRB did not affirm the upgrade action under the SDRP, under the current standards in existence in 1978.  This was primarily based on his extensive period of AWOL of 1831 days.

4.  This Board noted that the applicant returned to military control after 117 days of AWOL on 2 June 1970, shortly before his ETS on 29 July 1970.  However, he again departed AWOL on 26 June 1970, before reaching his ETS, and he remained so absent for more than 4 years.

5.  Further, the Board was not convinced that his personal and family problems were so severe as to warrant the extensive periods of AWOL.  There were many other avenues available to him for resolution of his problems without resorting to two periods of extensive AWOL.

6.  The Board found the discharge process to proper and equitable under the provisions of the PP 4313 Program discharge process.  

7.  In the absence of more convincing evidence, the Board concludes that affirmation of his upgrade to a general discharge under the SDRP by the ADRB on 11 September 1978 is not warranted.  

8.  In view of the foregoing, there is no basis for upgrade of his discharge to a general discharge under current standards, or to further upgrade his discharge to a fully honorable discharge, thereby granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

__      ___  __        __  __         _  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JLP___  __DWP__  __GDP__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018674	
SUFFIX		
RECON		
DATE BOARDED	19990715	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19750218	
DISCHARGE AUTHORITY	PP 4313	
DISCHARGE REASON	A00.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A00.20	
3.	A00.31	
4.	A92.07	
5.	A92.31	
6.	A94.15