APPLICANT REQUESTS: In effect, that his undesirable discharge be upgraded to a general discharge because he completed his alternate service under a Presidential clemency program.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted on 7 Mar 1972 and served 8 months 11 days prior to going AWOL from Germany on 25 Nov 1972. On 25 Nov 74 he was notified that he could participate in the Clemency Program set forth in Presidential Proclamation Number 4313. He returned to military control, accepted participation in the program, was afforded legal counsel, and given a medical examination. The applicant received an undesirable discharge on 6 March 1975 and upon completion of service for 23 months of alternate time he was awarded a clemency discharge on 19 May 1977.
There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
Presidential Proclamation 4313, issued 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 a
less than honorable discharge 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. The clemency discharge did not effect 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.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 6 March 1975, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 6 March 1978.
The application is dated 6 May 1996 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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