ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20180013651 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * DD Form 215 (Correction to DD Form 214) * General Orders (GO) Number 4354 (Army Commendation Medal) * Clemency Discharge Letter * DD Form 1953A Clemency Discharge * DD Form 293 (continuation) * Certificate of Completion of Selective Service System * Department of Veterans Affairs (VA) Decision 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 that he was part of the Presidential Proclamation 4313, and he completed his alternate service. He states that his Vietnam service is honorable and his discharge was due to compelling circumstances. He was issued the Army Commendation Medal with the “V” device for combat and heroism and he completed his alternate service to make it right. He states that he was also awarded a second commendation for meritorious service in Vietnam. He states that combat and his family issues were too much for him to bear at the time but, he is proud of his service and made it right. 3. The applicant provides: a. GO Number 4353, dated 7 August 1968, awarding him the Army Commendation Medal for heroism on 5 April 1968. He distinguished himself while serving as a Cannoneer with Battery A, 2nd Battalion, 9th Artillery, 4th Infantry Division. b. A DD Form 1953A Clemency Discharge Certificate, dated 28 September 1974, which reads that it is issued on 6 January 1976, in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation Number 4313. c. A certificate of completion from the Selective Service System in recognition of satisfactory completion of reconciliation service prescribed by Presidential Proclamation Number 4313 dated September 16 1974. d. An administrative decision from the VA dated 8 January 2018, that states the Veteran’s period of service from 4 August 1967 to 28 September 1974 is honorable for the VA purposes. 4. A review of the applicant’s service records shows: a. He was inducted into the Army of the United States on 4 August 1967. b. He served in Vietnam from 21 December 1967 to 13 December 1968. c. He was reported absent without leave (AWOL) effective 17 March 1969. He was dropped from the rolls and deserted effective 17 April 1969. d. Special Orders Number 176, dated 16 September 1974, show the applicant returned from AWOL status and was attached to the Personnel Control Facility at Fort Knox, KY. e. Reaffirmation of Allegiance and Pledge to Complete Alternate Service statement, dated 28 September 1974. He reaffirmed his allegiance to the United States of America and acknowledged on or about 17 March 1969, he voluntarily absented himself from his military unit without authority. This was in contravention to the oath he took upon entering military service. He recognized his obligation as a citizen remained unfulfilled and he was ready to serve in whatever alternative service his country prescribed for him and pledged to complete faithfully a period of 14 months' service. f. In exchange for his reaffirmation of allegiance and pledge to complete alternative service, the applicant was allowed to voluntarily request a discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974. In his request, he acknowledged: * he understood that his absence is characterized as a willful and persistent unauthorized absence which renders him triable under the Uniform Code of Military Justice and could lead to the imposition of a bad conduct or dishonorable discharge * he was making this request, of my own free will and have not been subject to any coercion whatsoever by any person * he understood his right to consult with legal counsel prior to completing this form and maximum punishment permissible * he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Undesirable Discharge Certificate * he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the VA and benefits of a Veteran under Federal and State law * once his discharge is submitted, it may not be withdrawn g. Special Orders Number 197 issued by the U.S. Army Administration Center, Fort Benjamin Harrison, IN, on 28 September 1974 ordering his discharge from active duty effective 28 September 1974 in accordance with Presidential Proclamation 4313 with an undesirable discharge. h. On 28 September 1974, he was discharged. His DD Form 214 (Report of Separation from Active Duty) 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. It also shows he completed a total of 1 year and 8 months of creditable active military service, with 137 days of lost time prior to the normal expiration of his term of service (ETS) and 1,863 days of lost time after ETS. The DD Form 214 also contains an entry in item 27 (Remarks) that indicates he agreed to serve 14 months of alternate service. i. On 23 January 1976, Office of the Adjutant General informed the applicant that a letter from the Reconciliation Service Division Manager, National Headquarters, Selective Service System, acknowledged the applicant’s completion of his assigned period of alternate service in the program. He has successfully completed the assigned period of alternate service in the Reconciliation Service Program and he is entitled to consideration for a Clemency Discharge according to the Service Division Manager. j. The applicant was issued a DD Form 1953A (Clemency Discharge) along with a DD Form 215, amending his DD Form 214 in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation Number 4313. k. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statue of limitations. l. Presidential Proclamation 4313 (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. 4. 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. 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 warranted. Based upon the applicant’s service in Vietnam, as well as the recent DoD guidance on clemency, the Board concluded that granting clemency to the applicant was appropriate by upgrading his characterization of service to Under Honorable Conditions (General). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the 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 a general discharge is a separation from the Army under honorable conditions of an individual 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 of 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. 4. The Department of Defense (DOD) 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 (SEA) or in the Western Pacific in support of operations in SEA, 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 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 based on 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. ABCMR Record of Proceedings (cont) AR20180013651 7 1