MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 September 2002
         DOCKET NUMBER: AR2002075305

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Karen Y. Fletcher		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 effect, that his undesirable discharge (UD) be upgraded as a result of him being awarded a Presidential Pardon.

APPLICANT STATES: In effect, that family problems impaired his ability to serve in the Army. He further states that he was denied a hardship discharge and that taking care of his family became his priority. In support of his application, he submits a copy of his separation document (DD Form 214), a copy of a letter from the Presidential Clemency Board, and a Western Union Mailgram.

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

On 7 December 1970, he was inducted into the Army for a period of 2 years. His record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that the highest rank he attained while on active duty was private/E-2.

The applicant successfully completed basic combat training (BCT) and was assigned to Fort Polk, Louisiana for advance individual training (AIT). While assigned to Fort Polk, he went absent without leave (AWOL) during the following periods: 1 May 1971 to 2 May 1971; 8 May 1971 to 15 May 1971;
24 May 1971 to 9 June 1971; 6 July 1971 to 18 July 1971; 27 July 1971 to
16 August 1971; and 13 September 1971 to 24 September 1973.

On 27 September 1983, a court-martial charge was preferred against the applicant for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) based on the six periods of AWOL. After consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial, the applicant voluntarily requested to be discharged for the good of the service/in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.

On 9 October 1973, the appropriate authority approved the applicant’s discharge request and directed that he be issued an UD, and that he be reduced to the lowest enlisted grade. On 15 October 1973, the applicant was discharged accordingly. At the time of his discharge, he had completed 8 months, and 1 day of creditable active military service, and he had accrued 790 days of time lost due to AWOL and confinement.

The letter from the Presidential Clemency Board and the Western Union Mailgram submitted by the applicant confirms that on 17 June 1975, he was awarded a Presidential Pardon under the provisions of Presidential Proclamation 4313.

There is no evidence to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that 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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after court-martial charges have been preferred. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 less than an 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.

However, the clemency discharge did not affect 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.

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 Board notes the applicant’s contention that family problems impaired his ability to serve in the Army. However, it finds insufficient evidence to show this factor is sufficiently mitigating to warrant the requested relief.

2. The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The Board notes that after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, he admitted guilt to the stipulated offense under the UCMJ.

3. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also notes that the type of discharge in effect at the time for this type of discharge is normally an UD and that the applicant was aware of that prior to requesting discharge. Finally, the Board finds the applicant’s UD was appropriate based on his overall record of service.

4. The provisions of 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 service program, which was specifically designed for former soldiers who received less than an honorable discharge based on AWOL related incidents between August 1964 and March 1973. However, the clemency discharge did not affect the underlying discharge, and did not entitle the individual to any benefits administered by the Department of Veterans Affairs (DVA), known as the Veterans Administration (VA) at the time.

5. After considering his overall record of service with regard to the Presidential Proclamation 4313 program, the Board found his record is not sufficiently meritorious to warrant an upgrade to his discharge. Thus, the Board concludes that the requested relief is not warranted in this case.

6. 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

__RVO_ __RJW___ ___KYF__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075305
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/26
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19731015
DISCHARGE AUTHORITY	AR6235-200. . . . .
DISCHARGE REASON	In Lieu of Trail by CM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0007
2.	144.9307
3.	144.7100
4.
5.
6.