ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160017042


APPLICANT REQUESTS:  His undesirable discharge be upgraded to either a general discharge or an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 12 October 2016
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 12 October 2016

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he was discharged on a waiver; however, amnesty was later granted by the Government.

3.  The applicant was inducted into the Army of the United States on 9 April 1968.

4.  The facts and circumstances surrounding the applicant's discharge are not available for review in this case.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 14 April 1976, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  His 
DD form 214 further shows:

* he had 2,711 days of lost time from 16 September 1968 through 17 February 1976
* his service was characterized as under other than honorable conditions
* he was issued an Undesirable Discharge Certificate

5.  The Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge on 3 March 1983.  The ADRB Case Report and Directive shows:

* the applicant was charged on 26 February 1976 with being absent without leave (AWOL) from on or about 16 September 1968 through on or about 18 February 1976
* the applicant consulted with counsel on 1 March 1976, and subsequent to that meeting, requested discharge in lieu of trial by court-martial
* the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 5 April 1976 

6.  A review of the available records does not show that the applicant was granted clemency at any time following his date of discharge.

7.  Army Regulation 635-200, in affect at that time, set forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  Based upon the short term of military service and the lengthy AWOL that resulted in the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

	 
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.

REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  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.
   
   b.  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.  

	c.  Chapter 10 states 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.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge.

3.  Presidential Proclamation (PP) 4313 issued by President Ford on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received less than honorable discharges for AWOL-related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, former members would be granted a “clemency” discharge by the President of the United States, thus restoring his or her affected civil rights.  However, the clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial. 

4.  President Carter signed Public Law 95-126 on 8 October 1977.  This law was enacted by Congress because it was upset that deserters from the Republic of Vietnam were eligible for VA benefits if their discharge was upgraded under the Special Discharge Review Program (SDRP).  The law statutorily barred VA benefits for AWOL’s greater than 180 days as well as conscientious objectors.  The law also mandated the Discharge Review Board’s published “Uniform Standards” then “relook” all cases upgraded from under other than honorable conditions under the SDRP or the PP 4313 program (and it’s extension) using the Uniform Standards.



ABCMR Record of Proceedings (cont)	 AR20160017042


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