MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 September 2002
         DOCKET NUMBER: AR2002073591

         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
Ms. Antoinette Farley		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Ms. Melinda M. Darby		Member
Mr. Ronald E. Blakely		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: In essence, that his undesirable discharge, be upgraded to “General” for health reasons.

APPLICANT STATES: In effect, that he served overseas and was young when he got an Amnesty Discharge after doing community service. He adds that he is much older now and needs his Veterans Administration (VA) Benefits, for health reasons. He further states that he did serve “in country” for 18 months.

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

That he was inducted on 10 September 1970.

On 16 September 1970, he received an honorable discharge in order to enlist in the Regular Army.

On 23 September 1970, a non-judicial punishment (NJP) under the provisions
of Article 15, Uniform Code of Military Justice (UCMJ), was imposed for neglecting military property of the United States, by losing 1 Bayonet Knife and
1 Bayonet Knife Scabbard on 21 September 1970. His punishment included forfeiture of $10.00 pay for one month and seven days of extra duty.

The applicant’s DA Form 20 (Enlisted Qualification Record) shows that, prior to completing basic combat training and advanced individual training, he received another NJP for failing to go to his appointed place of duty (AWOL) on 15 July 1971. His punishment included forfeiture of $30.00 pay per month for one month and extra duty for seven days. His form also shows that he was awarded military occupational specialty 26N20 (Aerial Surveillance Infrared Repairman) on
5 October 1971 and assigned to United States Army Overseas Replacement Station, Oakland, California. On 16 November 1971, he was transferred to the Republic of Vietnam (RVN) for duty.

On 29 February 1972, the applicant received a third NJP for twice failing to report to his place of duty at 1830 hours and 1910 hours on 26 February 1972. His punishment included reduction to pay grade E-2.

On 4 April 1972, the applicant, while in a leave status, failed to return to duty in the RVN. He was then dropped from the rolls and listed as a deserter.

On 4 September 1974, he returned to military control at Berrin County, Missouri, and further transferred to Special Processing Company, Personnel Control Facility, Fort Leonard Wood, Missouri.

On 26 September 1974, the applicant consulted with legal counsel, and voluntarily requested a discharge under the provisions of Presidential Proclamation No. 4313, 16 September 1974, for the good of the service in lieu of trial by court-martial and submitted a statement in his own behalf. He claimed that his mother was very sick and she needed an operation. He states, that he worked in a hospital as an orderly and began taking care of his mother. He also authenticated a statement in which he acknowledged that he understood the ramifications of an undesirable discharge.

On the same day the applicant was separated with an undesirable discharged, under the provisions of Army Regulation 635-200, Paragraph 5-10, in pay grade E-1. He had completed 1 year, 7 months and 25 days of creditable active service in his current enlistment and had 127 days of lost time before normal expiration of term of service, plus 721 days of lost time subsequent
to his normal expiration term of service. Additionally, he also agreed to serve
20 months of alternate service pursuant to the Proclamation.

On 8 October 1974, the applicant completed a separation physical and was found qualified for separation. Further, he stated, that he was in good health and taking no medication.

On 26 July 1976, the Selective Service System issued the applicant a Certificate of Completion, SSS Form RS-2, which indicated that he had satisfactorily completed the assigned period of alternate service in the Reconciliation Service Program and was then entitled to consideration for a Clemency Discharge.

On the same day, a DD Form 215, (Correction of DD Form 214), was issued to the applicant, showing the following correction was made to his DD Form 214, dated 26 September 1974, in Item 27 (Remarks): “ADDED: DD 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313.”

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 an Undesirable Discharge 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. The award of a Clemency Discharge could be considered by this Board, but the discharge per se did not require relief be granted.

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 request for discharge in lieu of trial by court-martial, after consultation with counsel, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received. Further, he acknowledged that he understood that he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the Veteran Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State Law, and that he understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharged. The discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2. The contention that he was young, served overseas and got a Amnesty Discharge after doing community service, is duly noted. Furthermore, none of these factors singularly or together outweigh the serious nature of the offenses that led to the discharge. They are not sufficiently mitigating to warrant relief.

3. 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.

4. In view of the foregoing, there is no basis to grant the applicant’s request.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JL __ __MMD__ ___REB _ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073591
SUFFIX
RECON
DATE BOARDED	20020919
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY	A01.33
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	A144.04
2.
3.
4.
5.
6.