MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 May 2002
         DOCKET NUMBER: AR2002068435

         I certify that hereinafter is recorded the record of consideration 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:

Mr. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		Member
Ms. Paula Mokulis		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: That his undesirable discharge be upgraded to honorable.

APPLICANT STATES: That at the time of his discharge, it was a very confusing time and now he would like his discharge upgraded.

EVIDENCE OF RECORD: The applicant's military records show:

He was inducted in Philadelphia, Pennsylvania, on 23 May 1967 and was transferred to Fort Bragg, North Carolina, to undergo his basic combat training. He successfully completed his training and was transferred to Fort Knox, Kentucky, to undergo advanced individual training as an armor intelligence specialist. He successfully completed his training and remained assigned to Fort Knox.

On 24 October 1967, nonjudicial punishment was imposed against him for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

The applicant went absent without leave on 3 January and remained absent until he was apprehended by civil authorities in Darby, Pennsylvania, on 29 February 1968, and was returned to military control at Fort Meade, Maryland.

On 27 March 1968, while still at Fort Meade, he was convicted by a summary court-martial of being absent without leave (AWOL) from 3 January to 29 February 1968. He was sentenced to restriction for 30 days and a forfeiture of pay.

The applicant was given orders transferring him to Fort Carson, Colorado in April 1968 and again went AWOL on 20 April 1968. He remained absent until he surrendered to military authorities at Fort Dix, New Jersey in June 1968. He again went AWOL on 6 July 1968 and remained absent until he contacted military authorities on 3 October 1974, requesting that he be allowed to participate in the program established under Presidential Proclamation 4313.

On 20 January 1975, the applicant submitted a request for discharge for the good of the service, under the provisions of Presidential Proclamation 4313, dated 16 September 1974. He indicated in his request that he understood that his absence was characterized as a willful and persistent unauthorized absence, which was triable by court-martial and could lead to a bad conduct or dishonorable discharge. He indicated that he went AWOL because of personal reasons and a general dislike of the military. He also acknowledged that he had consulted with counsel, that he would be furnished an undesirable discharge, and that within 15 days of his receipt of his Undesirable Discharge Certificate, he must report to the State Director of Selective Service to arrange for performance of alternate service in the Reconciliation Service Program. He also signed a Reaffirmation of Allegiance and Pledge to Complete Alternate Service for a period of 21 months.

On 29 January 1975, he was discharged under other than honorable conditions at Fort Benjamin Harrison, Indiana, under the provisions of Presidential Proclamation 4313, for the good of the service. He had served 1 year, 1 month and 29 days of total active service. He had 317 days of lost time due to AWOL, prior to the expiration of his term of service (ETS) and 2071 days of lost time due to AWOL, subsequent to his ETS. He agreed to serve 21 months of alternate service.

On 14 September 1976, the applicant was terminated from enrollment in the Reconciliation Service Program based on his signed statement declining to participate further in the program.

He applied to the Army Discharge Review Board (ADRB) on 13 August 1977, requesting that his discharge be upgraded to honorable because he contended that the country was not truthful and so he was not faithful. After reviewing the facts and circumstances surrounding his discharge, the ADRB denied his request on 24 January 1980.

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.” It is to be considered as ranking between an undesirable discharge and a general discharge. 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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant’s administrative discharge under Presidential Proclamation 4313 was accomplished in accordance with applicable laws and regulations with no indication of any violations of the applicant’s rights.

2. Accordingly, his discharge under other than honorable conditions appropriately reflects the character of his service.

3. The Board notes that by allowing the applicant to administratively separate under Presidential Proclamation 4313, he avoided his being tried by court-martial and having a felony offense on his records. While he may not now agree with the decision to discharge him under other than honorable conditions, he should not be allowed to change his mind at this late date.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___fe ___ __pm ___ __ra ____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002068435
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/05/16
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1975/01/29
DISCHARGE AUTHORITY	PRES PROC 4313
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 950	144.0000/A00.00
2.
3.
4.
5.
6.