BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150004499 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 to a general, under honorable conditions discharge. 2. The applicant states his record in Vietnam was outstanding and he was quickly promoted to the grade of E-7. In the 1990s, many discharges like the one he was issued were upgraded; however, when he first inquired no one knew what he was speaking of. He believes an upgrade of his undesirable discharge is warranted. 3. The applicant provides: * a self-authored statement * DD Form 214 (Report of Separation from Active Duty) * Special Orders Number 231 * DD Form 258a (Undesirable Discharge 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 enlisted in the Regular Army on 7 June 1966. He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. His records contain: a. DA Form 20 (Enlisted Qualification Record) which shows he was assigned to Company A, 1st Battalion, 28th Infantry Regiment, Republic of Vietnam on 10 January 1967. Item 33 (Appointments and Reductions) shows the highest rank/grade he achieved was the rank/grade of sergeant (SGT)/E-5. b. Special Court-Martial Order Number 206, issued by Headquarters Battalion, U.S. Army Artillery and Missile Center, Fort Sill, OK, dated 15 February 1968, which shows he pled guilty and he was found guilty by a special court-martial of one specification of, without authority, absenting himself from his organization on or about 7 July to 26 December 1967. He was sentenced to be confined at hard labor for six months and to forfeit $68.00 pay per month for six months. The sentence was adjudged on 13 February 1968. However, only so much of the sentence as provided for confinement at hard labor for six months and forfeiture of $40.00 per month for six months was approved, but the execution of the portion adjudging confinement at hard labor for six months was suspended for six months unless sooner vacated. c. Special Court-Martial Order Number 285, issued by Headquarters, 214th Artillery Group, Fort Sill, OK, dated 4 December 1968, which shows he pled guilty and he was found guilty by a special court-martial of one specification of, without authority, absenting himself from his unit on or about 8 July to 1 November 1968. He was sentenced to be confined at hard labor for six months and to forfeit $40.00 per month for six months. The sentence was adjudged on 29 November 1968. However, only so much of the sentence as provides for confinement at hard labor for six months and forfeiture of $40.00 per month for six months was approved, but the unexecuted portion of the sentence to confinement at hard labor for six months was suspended for five months, at which time, unless sooner vacated, the sentence would be remitted without further action. d. Special Court-Martial Order Number 120, issued by Headquarters, 214th Artillery Group, Fort Sill, OK, dated 13 June 1969, which shows contrary to his plea, he was found guilty by a special court-martial of, without authority, absenting himself from his unit on or about 6 January to 8 May 1969. He was sentenced to be confined at hard labor for six months and to forfeit $40.00 per month for six months. The sentence was adjudged on 5 June 1969. However, only so much of the sentence as provides for performance at hard labor without confinement for 1 month, confinement at hard labor for five months, and forfeiture of $40.00 per month for six months was approved, but the execution of that portion adjudging confinement at hard labor for five months was suspended until 4 December 1969, at which time unless sooner vacated, the suspended portion of the sentence would be remitted without further action. e. A letter to the applicant, dated 21 November 1974, that indicates the applicant was eligible to participate in a clemency program established by Presidential Proclamation 4313 (PP 4313) on 16 September 1974, for individuals who absented themselves without leave (AWOL), were dropped from the rolls, or who missed movement during the timeframe 4 August 1964 through 28 March 1973. However, his records contain no evidence he agreed to sign a Reaffirmation of Allegiance, a Pledge of Public Service, and to accept an undesirable discharge. In addition, there is no evidence the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974. 4. On 6 August 1975, court-martial charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for, without authority and with intent to remain away there from permanently, absenting himself from his organization from 22 October 1969 to 5 August 1975. 5. On 8 August 1975, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. 6. In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He elected not to submit a statement in his own behalf. 7. On 14 August 1975, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed the issuance of an Undesirable Discharge Certificate. On 19 August 1975, the applicant was discharged accordingly. He completed 1 year, 10 months, and 12 days of total active service with 2,680 days lost time due to being AWOL. 8. 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. 9. PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals. One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted. For those who elected 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. If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge. The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA. 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 that may have been denied due to the less than honorable discharge. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 11. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request to upgrade his undesirable discharge to a general, under honorable conditions discharge has been carefully examined. 2. The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he waived his opportunity to appear before a court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. The applicant's service in Vietnam and promotion to SGT were noted; however, his record of service shows he was frequently AWOL and he amassed 2,680 days of lost time. 4. The applicant contends in the 1990s discharges such as the one he received were upgraded; however, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. In addition, there is no evidence he elected a discharge under PP 4313 and satisfactorily completed a period of alternate service in order to be entitled to receive a Clemency Discharge. Based on his record of indiscipline, the applicant's misconduct renders his service unsatisfactory. 5.. The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency. The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs. 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) AR20150004499 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004499 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1