IN THE CASE OF: BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150003359 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, in effect, an upgrade of his discharge characterization from under other than honorable conditions to under honorable conditions (general). 2. The applicant states, in effect, that: * he did not know he received a dishonorable discharge * at the time of his discharge, he wanted to make the Army a career * he went home on 30 days of leave and when he attempted to return to post he was robbed of his wallet, identification card, and duffle bag * unable to get on post, he was told to go home and await orders; he never heard from anyone * he could not have been issued a dishonorable discharge because he was not in the service in 1975 * he was paralyzed in an automobile accident in 1979 3. The applicant provides: * an Honorable Discharge Certificate, dated 11 June 1968 * a Department of Veterans Affairs (VA) Form 9 (Appeal to Board of Veterans' Appeals), dated 19 December 2014 * VA Form 21-527EZ (Application for Pension), dated 23 April 2014 * a letter from the VA, dated 17 November 2014 * a self-authored letter, subject: "To Whom It May Concern," dated 21 January 2015 * a letter from a VA adjudication officer, dated 24 January 1986 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 was inducted into the Army of the United States on 19 July 1967. He completed his initial entry training and was awarded military occupational specialty 71B (Clerk Typist). He was honorably discharged for the purpose of immediate reenlistment on 11 June 1968. 3. He reenlisted in the Regular Army on 12 June 1968. The highest rank/grade he attained during his period of active service was private first class/E-3. 4. His DA Form 20 (Enlisted Qualification Record) shows he served in the Federal Republic of Germany from 19 January 1968 to 30 December 1970. 5. He accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions: a. on 18 April 1968, at McCully Barracks in Wackernheim, Germany, for failing to go to his appointed place of duty on 18 April 1968; and b. on 14 May 1968, at McCully Barracks in Wackernheim, Germany, for being absent without authority (AWOL) from on or about 11 May 1968 to on or about 12 May 1968. 6. His DA Form 20 shows he went AWOL on 16 July 1968 and was later dropped from the rolls (DFR) on 15 November 1968. 7. His records contain the following documents: a. An undated letter from the U.S. Army Enlisted Records Center, Fort Benjamin Harrison, Indiana to the applicant's next of kin, indicating the applicant was eligible to participate in a clemency program established by Presidential Proclamation 4313 (PP 4313) on 16 September 1974, for individuals who were AWOL, dropped from the rolls, or who missed movement during the timeframe 4 August 1964 through 28 March 1973. b. Two DA Forms 2800 (Criminal Investigation Division (CID) Report of Investigation), dated 12 December 1974 and 3 March 1975 respectively, which shows the applicant was arrested by civilian authorities on 4 November 1974 for forgery, traffic violations, and stealing. He was sentenced to be incarcerated for 11 months in the county jail in Sacramento, California, with a projected release date of 21 July 1975. c. A self-authored two-page letter, dated 7 January 1975, which he prepared with the assistance of the Public Defender's Office in Sacramento, California, wherein he requested to participate in the clemency program with a deferred date due to his incarceration. d. A message to the applicant from the Commander, U.S. Army Enlisted Records Center, Fort Benjamin Harrison, dated 20 January 1975, wherein the Commander granted his request for a deferred reporting date. It stated the following requirements: (1) He must execute a Reaffirmation of Allegiance and Pledge to Complete Alternative Service, wherein he agreed to serve in whatever alternative service his country may prescribe for him and he pledged to faithfully compete a period of service not to exceed 24 months. (2) He must acknowledge that he voluntarily absented himself from his military unit without being properly authorized, in contravention of the oath taken upon entering the nation's military service. (3) The statement must be notarized or witnessed and returned no later than 31 January 1975. (4) He also must present himself at Fort Harrison no later than 15 days following his release from prison and then he would be processed under the President's Clemency Program. e. A letter from the Office of Public Defender, Sacramento County, Sacramento, California, dated 24 January 1975, sent on behalf of the applicant with an enclosed notarized Western Union Telegram, dated 20 January 1975, which was sent to preserve his clemency rights. f. ADMINCEN Form 1966-3 (Enlisted Statement – Request for Discharge for the Good of the Service), after having been afforded the opportunity to consult with military counsel, the applicant voluntarily requested discharge on 22 August 1975, for the good of the service pursuant to the provisions of PP 4313. He indicated: (1) He understood his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the UCMJ and could lead to the imposition of a bad conduct discharge or dishonorable discharge. He acknowledged he was making the request of his own free will, he had not been subject to coercion, and he had been afforded the opportunity to consult with counsel and had been fully advised as to the nature of the offenses for which he could be tried and the maximum permissible punishment which could be imposed. (2) He understood that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He acknowledged that as a result of the issuance of such a discharge he would be deprived of all service benefits and VA benefits, could be deprived of his rights as a veteran under Federal and State law, and he could expect to encounter substantial prejudice in civilian life as a result of an undesirable discharge. (3) He understood that within 15 days of the date of receipt of the Undesirable Discharge Certificate, he was required to report to his State Director of Selective Services to arrange for the performance of alternate service. He further understood that satisfactory completion of such alternate service would be acknowledged by the issuance of a Clemency Discharger Certificate, but that this certificate would not alter his ineligibility for benefits predicated upon his military service. g. ADMINCEN Form 1966-5 (Reaffirmation of Allegiance and Pledge to Complete Alternative Service), dated 22 August 1975, wherein he acknowledged that on or about 16 July 1968, he voluntarily absented himself from his military unit without being authorized and pledged to complete 24 months of alternate service. 8. He was discharged from the Army on 22 August 1975. He received an under other than honorable conditions discharge with the issuance of a DD Form 258A (Undesirable Discharge Certificate). His DD Form 214 (Report of Separation from Active Duty) shows he completed 11 months and 29 days of total active service and had 2,591 days of lost time. Item 27 (Remarks) shows the statement "Subject member has agreed to serve 24 months alternate service pursuant to PRES PROC #4313." 9. His record does not contain a DD Form 1953A (Clemency Discharge Certificate) or any documentation that shows he successfully completed the program. 10. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 11. The applicant provides the following: a. An Honorable Discharge Certificate that shows he was honorably discharged from the Army of the United States on 11 June 1968, prior to his reenlistment in the Regular Army. b. Several VA documents and self-authored statements, which document his requests for and appeals of, various benefits administered by the VA. 12. 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. A Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. 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 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. 13. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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 AND CONCLUSIONS: 1. The applicant's request for an upgrade of his discharge characterization from under other than honorable conditions to under honorable conditions (general) was carefully considered. 2. The applicant's record shows he had a history of NJP and an extensive AWOL period of 2,591 days. He contends he does not know the reason why he received a dishonorable discharge. In fact, he insists he did not receive a dishonorable discharge because he was not in the service at the time he was issued the DD Form 214 in 1975. His records show while incarcerated, he requested a delay in processing his request for discharge. Upon release from civil confinement, he requested a voluntary discharge for the good of the service under the provisions of PP 4313. This afforded the applicant an opportunity to receive an under other than honorable conditions discharge vice a trial by court-martial which could have led to a bad conduct or dishonorable discharge and a felony conviction. The record shows he did not receive a dishonorable discharge as he contends. 3. He was further given the opportunity to complete a 24-month alternate service obligation that would have restored his civil rights but would not have changed his underlying discharge. His record does not contain any documentation as to his completion of the alternate service or a DD Form 1953A recognizing satisfactory completion of alternative service. Successful completion would have required a DD Form 215 (Correction to DD Form 214) depicting in item 27 (Remarks) a comment showing satisfactory completion of the alternative service. 4. The record contains no indication of procedural or other errors that would tend to jeopardize his rights. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. 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) AR20120007069 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003359 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1