BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20160000497 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: 9 May 2017 DOCKET NUMBER: AR20160000497 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: 9 May 2017 DOCKET NUMBER: AR20160000497 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 honorable conditions (general) discharge to a fully honorable discharge. 2. The applicant states: a. He requests a discharge upgrade review based on the information in his service record and a statement of the issues that led to his decision to seek employment elsewhere. He feels the records show that he acted in good faith and performed each assignment and duty with professionalism. Immediately after receiving notice that he was to be inducted into the military, he was contacted by an Army recruiter. During the course of the conversation his Armed Forces Qualification Test scores as well as his Scholastic Aptitude Test and college entrance examination scores showed that there were several schools for which he could easily qualify after basic combat training. However, he chose the Infantry as his primary military occupational specialty (MOS). The recruiter explained this choice to his mother during the conversation and for some time they each tried to convince him to make another decision. Finally, he explained to them that he had given this a lot of thought. It was his intention to make a career of his service. Having spent a year in college and in the Reserve Officers' Training Corps, he could have avoided draft eligibility but chose instead to drop out of college and pursue his dream. He also explained that the quickest and most efficient way to obtain rank during wartime was actual combat experience. b. This, combined with the faith and moral foundation that his mother had instilled in him and the knowledge he was soon to be a father, offered a secure and responsible way to fulfill his obligations to his country and family and to reach a lifelong goal. Also during that conversation, he was virtually guaranteed a combat assignment. And even though he knew it wasn't necessary, he agreed to an additional year because he was told in order to become airborne qualified an extension was a requirement. He knew this was an inaccurate statement because he had friends who were on active duty and he was familiar with the military requirements for certain MOSs. It actually didn't matter because he intended to reenlist at the end of his regulation time. As the records indicate, he excelled in all three schools, which included basic combat training, advanced infantry training, and jump school in 21 weeks without a cycle break. During his training cycle, he was interviewed for officer candidate school. Upon being assigned to the 82nd Airborne Division, it seemed certain that he was on his way. However, after a week and a half with the Replacement Detachment, he was the only one who had not been assigned to a line unit or given a combat assignment. c. The following week he was assigned to the 82nd Administration Company as a Personnel Records Specialists in the "PRB" office. His job was to make one entry into the 201 file of individuals returning from overseas (for eight hours). This is the assignment he was given after 21 weeks of continuous intensive training and he performed it well. However, this was a great emotional and physical let down and the attitude of the office personnel seemed to be one of general disinterest. Only one individual in the entire office had a Combat Infantryman Badge. The use of uppers and marijuana was standard with office personnel. He can't remember how long he was there before he made his "cherry blast." In an attempt to get transferred into a line unit, he took a "failure to repair" Article 15. The word was any disciplinary infraction would result in an immediate transfer from administration to a line unit or "worse." He was simply given a verbal reprimand with a $28 fine and ordered to return to his duties. d. When a fellow Soldier smashed both hands against a concrete wall while hallucinating, he (the applicant) decided enough was enough. He left, went home, found a job, and went to work. His Social Security records will show that there has never been an extended period when he had not been in the work force and continued to support his country. As a matter of fact, at the time of the amnesty program, he had already been employed by the SC Department of Mental Health for several years as a medical technician working in the medical surgical ward of Byrnes Clinic and simply continued working there until he completed his contract with the Army. In every employment position he has shown compliance to policy, professionalism, loyalty, courtesy, and provided excellent customer service. His employment record includes 14 years as an armored messenger with Wells Fargo Armored Service, 4 years as a home medical specialist (programming infusion pumps, delivering controlled medical substances, and delivering residential liquid oxygen), and 18 years and counting as a nuclear courier and pharmacist technician manufacturing and distributing low dosage radioactive imaging isotopes to hospitals, clinics, and other medical facilities. e. He represented his employers well at all times and has shown that he is trustworthy, efficient, intelligent, and willing to work hard on any assigned task. He has shown that he is capable of leadership as well as being able to accept, understand, and follow instructions. These points show the potential success he feels would have been possible if given a fair opportunity to perform within his chosen specialty. The fact he is completing a second decade with a large international corporation with an immaculate work and attendance record with them and each of his previous employers helps to support his position. He asks the review board to take these points into consideration when making a decision. 3. The applicant provides: * reissued DD Form 214 (Report of Separation from Active Duty) * two DD Forms 215 (Correction to DD Form 214) 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 for 3 years on 5 May 1969. His DD Form 4 (Enlistment Contract) shows he enlisted under the Airborne Training Duty Option. 3. He completed basic combat and advanced individual training, as well as the Basic Airborne Course, and he was awarded MOS 11B1P (Light Weapons Infantryman – the "P" is the airborne skill qualification identifier). 4. Following completion of training, he was assigned to the 82nd Administrative Company, 82nd Airborne Division, Fort Bragg, NC. 5. On 1 December 1969, he departed his unit in an absent without leave (AWOL) status and he returned to military control on 5 December 1969. 6. On 11 December 1969, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 1 to 5 December 1969. His punishment consisted of a suspended reduction to E-2, a forfeiture of pay, restriction, and extra duty. 7. On 5 February 1970, he again departed his unit in an AWOL status and on the same date, he was dropped from the rolls as a deserter. He remained AWOL through 30 January 1975. 8. His service record contains: a. "Option Form – Enlisted," wherein he indicated he was told by legal counsel about the President's Clemency Program and elected to sign a Reaffirmation of Allegiance, Pledge of Public Service and accept an undesirable discharge. b. A statement to the board for alternate service, dated 31 January 1975, wherein the applicant stated that the reason for his absence was that he volunteered for an extra year for infantry and jump school, but he was assigned to an administrative position. He also requested assignment to a line company or combat duty but that was denied because of an upcoming inspection and his brigade was returning (from combat) to Fort Bragg. c. Election of Military Rights statement, signed by the applicant. He indicated that he was afforded the opportunity to inspect his military records but elected not to have his military records checked. 9. His service record also contain a statement, "Request for Discharge for The Good of the Service," signed by the applicant. He indicated that he was advised by counsel of the offense(s) for which he may be tried, the maximum punishment which could be imposed, the consequences of an undesirable discharge, the nature and effect of his pledge to perform alternative service, and of the procedures and rights that were available to him. He requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974. He acknowledged that he understood: a. His absence is characterized as a willful and persistent unauthorized absence for which he is subject to trial by court-martial for a violation of the UCMJ and could lead to the imposition of a bad conduct or dishonorable discharge. b. He was making this request of his own free will and had not been subject to any coercion whatsoever by any person. c. Prior to completing this form, he was afforded the opportunity to consult with military counsel and he understood that he had the right to consult with civilian counsel retained at his own expense. d. He had been fully advised by counsel as to the nature of the offenses for which he may be tried and the maximum permissible punishment which may be imposed. e. He would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He was advised and understood the adverse nature of such a discharge and the possible consequences thereof. In this regard, he acknowledged that, as a result of the issuance of such a discharge, he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the Veteran's Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State Law. He also understood that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge. f. He understood that within 15 days of the date of receipt of the Undesirable Discharge Certificate, he must report to his State Director of Selective Service to arrange for performance of alternate service. He also understood that satisfactory completion of such alternate service will be acknowledged by issuance of a Clemency Discharge Certificate. He realized however, that such certificate will not alter his ineligibility for any benefits predicated upon his military service. g. He understood that once his request for discharge was submitted, it could not be withdrawn unless the withdrawal is approved by Commander, Fort Benjamin Harrison, IN. 10. On 31 January 1975, Headquarters, U.S. Army Administration Center, Fort Benjamin Harrison published orders ordering his discharge from active duty effective 31 January 1975 with an undesirable discharge. 11. He was discharged on 31 January 1975. His DD Form 214 shows he was discharged for the good of the service because of willful and persistent unauthorized absence pursuant to Presidential Proclamation Number 4313 with a character of service of under other than honorable conditions. This form also shows he completed a total of 6 months and 28 days of creditable active military service, and had accrued 884 days of lost time prior to the normal expiration of his term of service (ETS) and 995 days of lost time after his ETS. The DD Form 214 also contains an entry in item 27 (Remarks) that indicates he agreed to serve 24 months of alternate service. 12. On 16 March 1977, by letter, he was notified that he had been awarded a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974, since he completed his alternate service. He was issued a Clemency Discharge Certificate together with a DD Form 215. He was advised that he may apply to the Army Discharge Review Board (ADRB) for a review and possible upgrade of his discharge. 13. On 19 June 1979, in response to his petition for a review of his discharge, the DOD Discharge Review Board (Special) reviewed his discharge under Public Law 95-126 and determined that the characterization of service upgrade was warranted. 14. His DD Form 214 was revoked and he was reissued a new DD Form 214 reflecting his upgraded characterization of service to general, under honorable conditions. REFERENCES: 1. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the policy for administrative separation of enlisted personnel. a. Chapter 10 provides 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. However, an undesirable discharge was considered appropriate at the time the applicant was discharged. b. 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. c. Paragraph 3-7b states 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. 2. Presidential Proclamation 4313 (PP 4313), dated 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 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. 3. A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as the PP 4313 Extension). This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) whose records were free of any compelling reason to deny relief. This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals. Whether the individuals had performed alternate service was not an issue to be considered. 4. The Department of Defense (DOD) Special Discharge Review Program (SDRP) was directed in a memorandum from the Secretary of Defense in 1977. The SDRP stipulated that all former service members who received an undesirable or a general discharge during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP. It further indicated that individuals who received an undesirable discharge during the Vietnam era would have their discharges upgraded if they met one of the following criteria: wounded in combat in Vietnam, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia, completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974, or received an honorable discharge from a previous tour of military service. 5. On 8 October 1977, Public Law 95-126 provided that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions discharge, be added to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA. 6. Public Law 95-126 further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions. It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards. On 29 March 1978, these newly established uniform discharge review standards were published in DOD Directive 1332-28 (Discharge Review Board Procedures and Standards). DISCUSSION: 1. The applicant's record shows he enlisted in the Regular Army under the Airborne Training Duty Option. He was trained as an Airborne Soldier and received the airborne identifier with his MOS. Naturally, he was transferred to Fort Bragg, NC, home of the 82nd Airborne Division, albeit working in a different MOS than that trained in (11B). 2. There would have been several other alternatives to address this concern had the applicant used them. Instead, he made a choice to go AWOL from 5 February 1970 to 30 January 1975. When he heard about the amnesty program (Presidential Proclamation 4313) he appears to have contacted military officials. The program was explained to the applicant and he understood he would reaffirm his allegiance to the United States and perform alternative service for 24 months in exchange for an undesirable discharge from the Army. 3. He consulted with counsel and counsel explained his rights to him. He acknowledged he fully understood the consequences and implications of his decision. Accordingly, he was discharged in January 1975 with an under other than honorable conditions characterization of service. 4. He completed his alternative service and he was issued a Clemency Discharge Certificate. The clemency discharge did not affect the underlying discharge and did not entitle him to any benefits administered by the VA. 5. He applied for an upgrade under the DOD SDRP and he was granted relief. His discharge was upgraded to a general discharge. An honorable characterization of service 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. 6. The applicant's service consisted of one Article 15, 884 days of lost time prior to ETS, 995 days of lost time after ETS, and potential court-martial charges that could have led to a bad conduct or a dishonorable 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) AR20160000497 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000497 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2