BOARD DATE: 27 October 2016 DOCKET NUMBER: AR20150013826 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: 27 October 2016 DOCKET NUMBER: AR20150013826 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: 27 October 2016 DOCKET NUMBER: AR20150013826 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 his undesirable discharge be upgraded to an honorable or general discharge. 2. The applicant states he was serving in Vietnam when he was notified his grandmother had gone to the hospital and was dying. The Red Cross tried to get him a compassionate leave but it was turned down by the battalion commander. His family contacted their Congressional representative, who stepped in and he was allowed to go home. The battalion commander was upset because a member of Congress had stepped in. The battalion commander stated "That old woman is not considered kin to you." He had the people running the airport in Vietnam put him on stand-by and it took him 9 days to leave Vietnam. When he got to the States his grandmother had been buried for several days. a. At the end of his leave he was 2 days late getting to the base to be sent back to Vietnam. The military police and the commander told him that as soon as he got back to his company they would court-martial him and either put him in front of a firing squad or send him to Leavenworth prison. b. When he was allowed to leave the office he kept going and went back home. He lived and worked in his home town until the amnesty was given and he surrendered to apply for it. c. He signed what he was told to sign on the advice of the Judge Advocate General Corps (JAG) officer assigned to his case. The JAG officer said it was either accept the amnesty and sign it or there would still be a court-martial and sentence. d. He was required to do community service for a time. During the time allotted there were no jobs or anything in the area he lived so he was not able to do it the way the papers stated. He did however, do the best he could. 3. The applicant provides: * his request for discharge from the service, dated 26 February 1975 * DD Form 214 (Report of Separation from Active Duty) with an effective date of 26 February 1975 * a Request for Criminal Record Check, dated 6 April 2006 * a personal reference 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. On 4 April 1967, the applicant enlisted in the Regular Army for 3 years. 3. On 8 February 1968, he was tried before a special court-martial. He pled guilty and was found guilty of being absent without leave (AWOL) from on or about 25 August 1967 to on or about 20 December 1967. 4. He was assigned to Company B, 1st Battalion, 69th Armor in the Republic of Vietnam from 28 April 1968 - 4 January 1969. 5. On 5 January 1969, the applicant was reported AWOL. 6. U.S. Army Administration Center and Fort Benjamin Harrison, Fort Benjamin Harrison, IN Special Orders Number 41, dated 26 February 1975, indicated the applicant returned to military control at Fort Benjamin on 26 February 1975. He was assigned to the Joint Clemency Processing Center, Fort Benjamin Harrison. 7. In an undated statement, after having been told by legal counsel about the President's Clemency Program, he elected to: * sign a Reaffirmation of Allegiance * sign a Pledge of Public Service * accept an undesirable discharge 8. On 26 February 1975, he reaffirmed his allegiance to the United States of America and pledged to faithfully serve 14 months of alternate service. 9. 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 * would be ineligible for all benefits administered by the VA * may be deprived of his rights and benefits as a veteran under both Federal and State laws * may encounter substantial prejudice in civilian life because of an undesirable discharge 10. He also understood: * he must report to his State Director of Selective Service for alternate service within 15 days of discharge * satisfactory completion of such service would be acknowledged by issuance of a Clemency Discharge Certificate * such certificate would not alter his ineligibility for any benefits predicated on his military service 11. On 26 February 1975, the applicant was discharged under the provisions of Presidential Proclamation 4313. He had completed 1 year, 4 months, and 24 days of net active service that was characterized as under other than honorable conditions. He received an Undesirable Discharge Certificate. He had 585 days of time lost before his normal expiration of term of service (ETS) and 1,781 days of time lost after his normal ETS. 12. In a letter, dated 12 January 1976, the National Headquarters, Selective Service System, stated the applicant was terminated from enrollment in the Reconciliation Service Program and he did not complete his required period of alternate service. He was terminated due to his not being cooperative with efforts to place him on an approved job. He had refused to accept an approvable position. 13. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. 14. The applicant provided a personal reference from R, who vouches for the applicant's integrity and character. He performed for many benefit organizations and charity events. He feels that any and all community services that were demanded of the applicant should be considered completed. REFERENCES: 1. Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford. It identified three categories of persons and permitted them to apply for clemency discharge. Those categories were: * civilian fugitives who were draft evaders * members of the military who were still AWOL * former military members who had been discharged for desertion, AWOL, or missing movement. Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial. Those who elected to earn a clemency discharge (AWOL’s and discharged members) could be required to perform up to 24 months alternate service. Upon successful completion a clemency discharge would be issued. (NOTE: In any event, the clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits.) 2. Army Regulation 635-200 (Personnel Separations, Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant had 585 days of time lost before his normal ETS and 1,781 days of time lost after his normal ETS. 2. He did not complete his 14 months of alternate service. He did not cooperate with efforts to place him on an approved job. He refused to accept an approvable position. 3. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The record contains no indication of procedural or other errors that would tend to jeopardize his rights. The applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013826 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013826 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2