ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20170017192 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 at his port of embarkation preparing to ship to Vietnam. While there he learned of his spouse’s illness and partial blindness. He informed military authorities (a major) of his spouse’s illness and requested a hardship discharge. He was told to go home and that someone would get back with him. He called military authorities numerous times however, no one knew what to tell him. He decided to go on with life and was eventually arrested 4 years later for being absent without leave (AWOL). He attempted to use the system to get released from the Army but, the system failed him. He is asking that his discharge be upgraded to honorable. 3. A review of the applicant’s service records shows: a. On 19 February 1969, he was inducted in the Regular Army. He was promoted to private/E-2 on 19 June 1969. b. On 7 March 1970, he was reported AWOL and on 12 March 1970, he was dropped from the rolls as a deserter. He was apprehended by civil authorities and returned to military control on 9 June 1974. c. On 20 September 1974, he requested and was granted participation in the President’s Program for the Return of Military Deserters. He understood and elected to: a. * sign a Reaffirmation of Allegiance * sign a Pledge of Public Service * accept an undesirable discharge d. On 30 September 1974, he reaffirmed his allegiance to the United States of America and pledged to faithfully serve 24 months of alternate service. He acknowledged his understanding that: * 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 eligibility for any benefits predicated on his military service e. Also on 30 September 1974, after having been afforded the opportunity to consult with military counsel, the applicant voluntarily requested discharged for the good of the service pursuant to the provisions of Presidential Proclamation 4313. 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 Uniform Code of Military Justice and could lead to the imposition of a bad conduct or dishonorable discharge. He further understood that he would be discharged under other than honorable conditions and issued an Undesirable Discharge Certificate. He acknowledged that upon issuance of such a discharge he: * would be deprived of all service benefits * would be ineligible for all benefits administered by Veterans Affairs (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 f. On 30 September 1974, he was discharged under the provisions of Presidential Proclamation 4313. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 4 months, and 19 days of net active service that was characterized as under other than honorable conditions. He was issued an Undesirable Discharge Certificate and reduced to PVT/E-1. His DD Form 214 further shows: * he had 341 days of time lost before his normal expiration of term of service (ETS) and 1114 days after his normal ETS * * he was awarded or authorized the National Defense Service Medal, Expert Marksmanship Qualification Badge with Rifle Bar (M-14), and Expert Marksmanship Qualification Badge with Rifle Bar (M-16) g. In a letter, dated 14 September 1976, the National Headquarters of the Selective Service System terminated the applicant from enrollment in the Reconciliation Service Program. The applicant failed to complete his required period of alternate service. After commencement of work on two successive approved jobs, he was dismissed from both for unsatisfactory performance. 3. By regulation/directive: a. An individual who has committed an offense or offenses to which the punishment includes a punitive discharge may submit a request for discharge for the good of the service. b. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 4. Presidential Proclamation 4313 was issued by President Ford on 16 September 1974. a. It identified three categories of individuals 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 b. 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 and discharged members) could be required to perform up to 24 months of alternate service. Upon successful completion, a clemency discharge would be issued. The clemency discharge would not affect the individual’s underlying discharge, and did not entitle him to any VA benefits. a. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the length of the AWOL offense which resulted in the discharge, as well as it ending by apprehension, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/21/2019 X CHAIRPERSON Signed by: 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 Army Board for Correction of Military Records (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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for the good of the service. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. If warranted, however, the discharge authority may direct an honorable or general discharge. 3. Presidential Proclamation 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals, one of which 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 either elect a discharge under other than honorable conditions under Presidential Proclamation 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 were to perform. If they successfully completed the alternate service, they would be entitled to receive a Clemency Discharge. The Clemency Discharge did not affect the underlying discharge and did not entitle the member to any benefits administered by the Department of Veterans Affairs. 1. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.