| Mr. Carl W. S. Chun | Director | |
| Mr. Edmund P. Mercanti | Analyst |
| Mr. Melvin H. Meyer | Chairperson | |
| Mr. William D. Powers | Member | |
| Mr. Frank C. Jones, II | Member |
APPLICANT REQUESTS: That his undesirable discharge be upgraded to either a general or honorable discharge.
APPLICANT STATES: He was young and too immature to trust his ability to function in war. He departed absent without leave (AWOL) to avoid military service in Vietnam. He adds that the President of the United States pardoned the people who dodged the draft. He believes that his discharge should be upgraded based upon the same principles.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army on 19 November 1969. He was a high school graduate and 19 years old at that time.
On 18 December 1969, the applicant accepted nonjudicial punishment (NJP) imposed under Article 15, Uniform Code of Military Justice, for disobeying a lawful order.
On 19 December 1969, the applicant again accepted NJP, this time for failing to secure his personal property.
He was awarded the military occupational specialty of artilleryman and was assigned to a unit in Germany in May 1970.
On 21 December 1970, the applicant accepted NJP for attempting to wrongfully appropriate 10 gallons of gasoline.
On 29 August 1972, court-martial charges were preferred against the applicant for being AWOL from 26 February 1971 to 17 August 1972.
On 8 September 1972, the applicant requested discharge in lieu of court-martial for the good of the service. His legal counsel countersigned his request.
His request was approved by the appropriate authority and he was discharged in lieu of trial by court-martial for the good of the service on 28 September 1972. He had 1 year, 4 months and 14 days of creditable service and 541 days of lost time.
On 18 October 1983, the Army Discharge Review Board denied the applicant’s request for an 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.
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 applicant was AWOL for well over a year. Prior to going AWOL, he accepted NJP on three occasions. Such a record certainly warranted an undesirable discharge.
2. The applicant’s contention that he was young and immature is not accepted by the Board. He was 19 years old when he enlisted, and he was 22 years old when he was discharged. The Army has soldiers who enlist when they are 17 years old who routinely serve their entire enlistments honorably.
3. The applicant’s contention that his discharge should be upgraded based upon the same principles used by the President of the United States when he pardoned the men who dodged the draft is not accepted by the Board. That was a civilian matter, not a military matter. The applicant was properly processed in accordance with the military regulations in effect at the time.
4. The applicant’s statement that he went AWOL to avoid military service in Vietnam is not mitigating in the type of discharge he was issued. When the applicant departed AWOL, another soldier had to take his place in Vietnam. This is not a fact that would warrant upgrading a properly issued discharge.
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
___fcj___ ___wdp __ ___mhm_ DENY APPLICATION
| CASE ID | AR2003088459 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20061021 |
| 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. | |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2001 | 2001056209C070420
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. On 29 February 1972 the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.
ARMY | BCMR | CY2006 | 20060000079C070205
He goes on to state that he served his tour of duty in Vietnam and was honorably discharged. He further states that his two tours in Vietnam, along with the Presidential Pardon he obtained and his subsequently successful civilian employment should justify an upgrade of his discharge. Accordingly, the Board determined that the applicant should be excused for failing to timely file for the upgrade of his discharge and to grant him an honorable discharge based on clemency.
ARMY | BCMR | CY2011 | 20110013688
The commander stated the applicant received two special courts-martial for AWOL totaling 440 days. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 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.
ARMY | BCMR | CY2001 | 2001055046C070420
On 22 October 1975, he received a full pardon (grant of executive clemency) under Presidential Proclamation 4313. The Clemency Discharge is a neutral discharge, issued neither under “honorable conditions” nor under “other than honorable conditions.” 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). The applicant’s voluntary request for...
ARMY | BCMR | CY2009 | 20090021700
The applicant requests upgrade of his undesirable discharge to a general discharge. Counsel states: * The applicant's unit was involved in numerous combat activities in the RVN * He was wounded twice while serving as a gunner and his actions and the action of his unit earned them the Presidential Unit Citation * His troubles began in 1969 when he had conflicts with the new battery commander who was not an experienced combat officer on combat tactics and employment of weapons systems * The...
ARMY | BCMR | CY2001 | 2001065906C070421
The Board considered the following evidence: Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness. An undesirable discharge was normally considered appropriate for separation under the regulation; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the separation authority.
ARMY | BCMR | CY2010 | 20100019601
On 9 March 1971, while serving in the pay grade of E-5, he reenlisted for a period of 6 years and assignment to Vietnam. 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. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.
ARMY | BCMR | CY2013 | 20130016428
The applicant requests, in effect, reconsideration of his earlier request that his discharge be upgraded to a more favorable discharge that will qualify him for benefits. There is no evidence in the available record to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations. The last group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President (members were...
ARMY | BCMR | CY2010 | 20100009092
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. Both the Joint Board and Presidential Board were authorized to award a Clemency Discharge with the performance of alternate service. He was discharged pursuant to the sentence of a general court-martial and was issued a bad conduct discharge after the sentence was affirmed.
ARMY | BCMR | CY2010 | 20100011187
The applicant requests, in effect, that his undesirable discharge be upgraded to an honorable discharge. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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.