| Mr. Carl W. S. Chun | Director | |
| Mr. G. E. Vandenberg | Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Ms. Yolanda Maldonado | Member | |
| Mr. John P. Infante | Member |
APPLICANT REQUESTS: That his undesirable discharge be upgraded to a general discharge.
APPLICANT STATES: In effect, that he had his family problem but had served 2 years in Vietnam without incident before going AWOL (absent without leave). He states that he received a Presidential Pardon (Clemency Discharge) and has been a productive citizen since his discharge.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant entered active duty on 23 May 1969. He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 76P (Special Purpose Equipment Repair Parts Specialist).
On 20 November 1969, the applicant was assigned to the Headquarters Company, US Army Engineer Command Vietnam. His duty MOS was 76P until 14 April 1970 when he converted to 64B (Heavy Vehicle Driver).
The applicant was granted special leave and failed to return at the completion of that leave period, for which a special court-martial found him guilty of being AWOL from 12 July 1971 through 10 August 1971.
The applicant was again granted special leave and again failed to return going AWOL a second time, 4 January 1972 through 6 July 1972.
Court-martial charges were filed for this second period of AWOL and on 26 July 1972, after consulting with counsel and being advised of his rights and options under the Uniform Code of Military Justice (UCMJ), the applicant submitted a formal request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulations 635-200, chapter 10. He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge. He acknowledged that there is no automatic upgrade or review of the characterization of his discharge. He elected not to make a statement on his own behalf.
The discharge authority accepted his request and directed that he receive an UOTHC discharge.
The applicant was discharged on 25 August 1972 under other than honorable conditions for the good of the service in lieu of trial by court-martial.
The applicant’s DD Form 214 (Report of Transfer or Discharge) shows he had 2 years, 7 months, and 22 days of creditable service with 221 days lost due AWOL, or pretrial confinement.
On 15 November 1973 the Army Discharge Review Board denied the applicant's request for upgrade of his discharge.
On 27 January 1976 the applicant was granted a clemency discharge in accordance with Presidential Proclamation 4313.
On 10 December 1981 the Army Discharge Review Board again reviewed the applicant’s records and denied his request for upgrade of his discharge.
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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
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 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 and applicable law and regulations, it is concluded:
1. The issuance of a clemency discharge, under the provisions of Presidential Proclamation 4313, does not affect the underlying reason or characterization of the applicant’s discharge nor does it furnish a basis for upgrading the existing discharge.
2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.
3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request for an upgrade on his discharge. Good post service is in and of itself insufficient to recharacterize the applicant’s service.
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.
| CASE ID | AR2002082751 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030724 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | upgrade |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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