RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            15 APRIL 2004
      DOCKET NUMBER:   AR2003098711


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. John P. Infante               |     |Member               |
|     |Ms. Regan K. Smith                |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded.

2.  The applicant states that he was granted a “clemency discharge” in 1976
and just recently received a copy of his Department of Defense Form 215
(Correction to DD Form 214, Report of Separation from Active Duty).  In
separate correspondence to his congressional representative the applicant
stated that he was very ill, that his health was declining and he was
unable to work.

3.  The applicant provides a copy of his separation document and the 1976
Department of Defense Form 215.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on
14 April 1976, the date his clemency discharge was issued.  The application
submitted in this case is dated 16 September 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant was inducted
and entered active duty on 8 February 1968.  He successfully completed
basic and advanced individual training; receiving excellent conduct and
efficiency ratings.

4.  In August 1968, following completion of training, the applicant was
assigned to Vietnam where he was awarded the Combat Infantryman Badge.  In
December 1968 he was promoted to pay grade E-4.

5.  The applicant departed Vietnam in June 1969 and was briefly carried in
a patient status at Camp Zama, Japan prior to being assigned to the Medical
Holding Company at Martin Army Hospital at Fort Benning, Georgia.  The
basis for his medical treatment was not in records available to the Board,
but there is no evidence in available records that his hospitalization was
the result of any combat incurred wound or injury.




6.  On 6 August 1969 the applicant was assigned to the replacement
detachment at Fort Benning.  On 8 August 1969 he was reported as AWOL
(absent without leave).  He was dropped from the rolls of the Army in
September 1969 and returned to military control on 9 October 1969.  On 12
November 1969 he was again reported as AWOL.  He was subsequently dropped
from the rolls of the Army for a second time in December 1969 and remained
in a deserter status until 21 April 1971 when he returned to military
control.  The applicant’s records do not indicate if he was apprehended or
voluntarily returned to military control in 1971.

7.  In May 1971 the applicant was convicted by a general court-martial of
AWOL between 12 November 1969 and 21 April 1971.  His sentence included a
bad-conduct discharge, total forfeiture of pay and allowances, and
confinement at hard labor for 7 months.  The sentence was adjudged on 27
May 1971.

8.  On 23 June 1971 only so much of the finding of guilty as found the
accused absent without authority from 11 December 1969 until 21 April 1971
and only so much of the sentence as provided for bad conduct discharge,
confinement at hard labor for six months, and total forfeitures, was
approved.

9.  On 16 October 1972 the applicant’s bad conduct discharge was executed
and he was discharged under other than honorable conditions and issued a
Bad Conduct Discharge Certificate.  His separation document notes that he
had more than 700 days of lost time due to AWOL and confinement.

10.  In October 1976 the applicant was notified that he had been “awarded a
clemency discharge pursuant to Presidential Proclamation 4313 of 16
September 1974.”  A Department of Defense Form 215 was issued at the same
time.  The applicant’s file does not contain any other documents associated
with his clemency discharge beyond the notification letter and Department
of Defense Form 215.

11.  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 (absent without leave) 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.



12.  In 1980 the applicant was notified that because his discharge resulted
from a general court-martial he was precluded from having the Army
Discharge Review Board review the character of his service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available notes that the applicant had excellent conduct
and efficiency ratings, successfully completed training, was promoted and
served honorably in Vietnam.  He has offered no evidence which would serve
as a basis to justify upgrading his discharge as a matter of equity.

2.  While the applicant may have been granted a pardon under Presidential
Proclamation 4313, the pardon was merely a grant of clemency, which
restored the applicant’s civil rights.  The action did not affect the basis
or character of an individual’s discharge and does not serve as a basis to
justify upgrading the individual’s discharge at this time.

3.  In order to justify correction of a military record the applicant must,
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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 April 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
13 April 1979.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JNS __  __JPI ___  __RKS __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.



2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _____John N. Slone________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003098711                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040415                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |