PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 October 2001
         DOCKET NUMBER: AR2001055046


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Harry B. Oberg		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his undesirable discharge be upgraded to a general discharge.

3. The applicant states, in effect, that his punishments were the result of racism and that persons of the Caucasian race did not receive the same punishments as those who were black. He further states that he was twice wounded in Vietnam and although he was not aware at the time, he suffered from Post Traumatic Stress Disorder (PTSD). He goes on to state that upon his return from Vietnam he found that his wife was living with someone else and was working as a prostitute. He also states that not only was he deprived of attending Officer Candidate School, he did not receive the training he had enlisted for and was informed that because the class had already started he could not attend. In addition, he had an excellent record of service until he began to encounter racist attitudes. He continues by stating that he is now serving as a pastor of a church in Mississippi who counsels troubled veterans and teens. In support of his application he submits a copy of his report of separation (DD Form 214) and a copy of his Presidential Pardon.

4. The applicant’s military records were not available in its entirety for review by the Board. However, reconstructed records and the documents submitted by the applicant show he initially enlisted on 21 November 1963 and while serving in the pay grade of E-3, reenlisted on 22 November 1964 for a period of 6 years. He served 1 year in Vietnam, was awarded two Purple Hearts, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and a Good Conduct Medal. He attained the pay grade of E-6 and held the military occupational specialty of a chemical staff specialist.

5. The available records show that he was convicted by a general court-martial and two special court-martials of being absent without leave and failure to go to his place of duty. His conviction by a general court-martial on 10 October 1970 resulted in his being reduced from the pay grade of E-6 to E-1. Nonjudicial punishment was also imposed against him on at least one occasion for being AWOL for 4 days. At that point his AWOL periods included being AWOL from 13 November 68 to 21 December 1970, 1 July to 30 August 1971, and 22 October to 25 October 1971.

6. On 19 November 1971, he went AWOL and remained absent until he was returned to military control on 12 January 1972 and charges were preferred against him.

7. After consulting with counsel, he submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He indicated in his request that he had not been coerced in any way to request such a discharge and that he understood the implications attached to his request. He also indicated that he understood the consequences and prejudice that he might expect to encounter in civilian life with a discharge under other than honorable conditions. He also elected not to submit a statement in his own behalf. However, information obtained during a commander’s interview indicates that the applicant indicated that he wanted out of the Army to attend Theology School, that he went AWOL because he felt that there was racism at Fort Jackson, South Carolina, and that he just wanted out.

8. The appropriate authority (a brigadier general) approved his request on 4 February 1972 and directed that he be furnished an Undesirable Discharge.

9. Accordingly, he was discharged under other than honorable conditions on 9 February 1972 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 5 years, 8 months and 1 days of total active service and had approximately 885 days of lost time due to AWOL.

10. On 22 October 1975, he received a full pardon (grant of executive clemency) under Presidential Proclamation 4313.

11. There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12. Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals. These groups were fugitives from justice who were draft evaders; members of the Armed Forces who were in an unauthorized absence status; and prior members of the Armed Forces who had been discharged with a punitive discharge for violations of Articles 85, 86, or 87 of the Uniform Code of Military Justice. The last group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military and members of the Reserve components) who would make a determination regarding the performance of alternate service. That board was authorized to award a Clemency Discharge without the performance of alternate service (excusal from alternate service). The dates of eligibility for consideration under this proclamation for those already discharged from the military service were 4 August 1964 to 28 March 1973, inclusive. Alternate service was to be performed under the supervision of the Selective Service System. When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual’s former military service. The military services issued the actual Clemency Discharges. The Clemency Discharge is a neutral discharge, issued neither under “honorable conditions” nor under “other than honorable conditions.” A Clemency Discharge does not affect the underlying discharge and does not entitle the individual to any benefits administered by the Department of Veterans Affairs (formerly Veterans Administration). While there is no change in benefit status per se, a recipient may apply to the Department of Veterans Affairs for benefits.

13. On 19 January 1977, President Ford issued a memorandum that changed the nature of the pardon issued under Presidential Proclamation 4313 for some members. The memorandum made a general discharge mandatory for all soldiers who were otherwise qualified under Presidential Proclamation 4313 who were wounded in action in South East Asia.

14. On 28 March 1977, President Carter issued guidance to the Secretary of Defense that further expanded the pardons issued under Presidential Proclamation 4313. President Carter’s guidance resulted in the Special Discharge Review program, administered by the Army Discharge Review Board.
That guidance made an upgrade of an undesirable discharge mandatory if a soldier otherwise qualified under Presidential Proclamation 4313 had been wounded in action, received an individual decoration for service in South East Asia, or completed a tour in South East Asia.

15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge. A discharge under other than honorable conditions is normally considered appropriate.

CONCLUSIONS:

1. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

2. Accordingly, the type of discharge directed at the time and the reasons therefore were appropriate under the circumstances.

3. However, under the provisions of Presidential Proclamation 4313 as amended in 1977, because the applicant had a previous honorable discharge, served a tour in South East Asia, received a Purple Heart, and his misconduct was AWOL related, he is entitled to receive a general discharge.
4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION: That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was discharged under honorable conditions on 9 February 1972 under Presidential Proclamation 4313 and that he be provided a General Discharge Certificate in lieu of the Undesirable Discharge Certificate now held by him.

BOARD VOTE:

__hbo___ __cla____ ___ao___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _____Celia L. Adolphi____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001055046
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/30
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1972/02/09
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 952	144.0011/A00.11
2.
3.
4.
5.
6.