MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 2 October 2003
                  DOCKET NUMBER: AR2003090842

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Mr. Lester Echols		Member
Mr. John T. Meixell		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: That the clemency discharge and bad conduct discharge (BCD) her deceased husband, a former service member (FSM) received, be upgraded to honorable.

APPLICANT STATES: In effect, that the FSM received a clemency discharge and she has now been denied veterans benefits by the Department of Veterans Affairs because his BCD was not upgraded. She goes on to state that she has no income and is in need of assistance. She also states that the FSM was a wounded combat veteran and that he went absent without leave (AWOL) at the time because his older sister had married and moved to Mexico, leaving his 7 year old sister with his alcoholic and abusive father. He went in search of his sister who had been placed in foster care. She goes on to state that while he was searching, he was picked up and was sent to Leavenworth. In support of her application she submits a picture of the FSM reunited with his sisters, and an unofficial handwritten letter from the FSM's sister.

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

He enlisted in Harrisburg, Pennsylvania, on 31 March 1965, for a period of 3 
years. He completed his basic and advanced training at Fort Gordon, Georgia, and was transferred to Fort Benning, Georgia, where he successfully completed basic airborne training.

On 7 September 1965, he was transferred to Vietnam, where he was assigned to Troop E, 17^th Cavalry Regiment, 173^rd Airborne Brigade, for duty as a grenadier. He was advanced to the pay grade of E-3 on 13 September 1965.

On 16 July 1966, he received a foot wound from an enemy punji stake and was awarded the Purple Heart. He was also awarded the Combat Infantryman Badge (CIB).

He departed Vietnam on 1 September 1966 and was transferred to Fort Bragg, North Carolina.

On 15 November 1966, he reenlisted for a period of 4 years and assignment within or near the New York area. He departed Fort Bragg on 1 December 1966 for assignment to Fort Hancock, New Jersey.

On 6 January 1967, he went AWOL and remained absent until he was returned to military control at Fort Dix, New Jersey, on 2 March 1967. He again went AWOL on 4 March 1967 and remained absent until he was apprehended on 27 March 1973, and was returned to military control at Fort Dix.

On 13 July 1973, he plead guilty and was convicted by a general court-martial of being AWOL from 6 January to 2 March 1967 and from 4 March 1967 to 27 March 1973. He was sentenced to confinement at hard labor for 6 months, reduction to the pay grade of E-1 and a BCD.

He was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his confinement and remained there until he was discharged under other than honorable conditions on 3 December 1973, pursuant to a general court-martial conviction. He had served 1 year, 9 months and 7 days of total active service and had 2,522 days of lost time due to AWOL and confinement.

On 12 March 1976, a letter was dispatched to the FSM informing him that he was being awarded a clemency discharge, pursuant to Presidential Proclamation 4313 of 16 September 1974. He was also advised of the procedures to apply to the Army Discharge Review Board (ADRB) and was provided the application form (DD Form 293).

There is no indication that the FSM ever applied to the ADRB within that board's 15-year statute of limitations.

On 8 July 1977, this Board dispatched a letter to the FSM advising him that the Board would review his discharge for possible upgrade, provided he submitted the enclosed application within 30 days. The FSM failed to do so.

Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals. These groups were fugitives from justice who were draft evaders; members of the Armed Forces who were in an unauthorized absence status; and prior members of the Armed Forces who had been discharged with a punitive discharge for violations of Articles 85, 86, or 87 of the Uniform Code of Military Justice. The last group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military and members of the Reserve components) who would make a determination regarding the performance of alternate service. That board was authorized to award a Clemency Discharge without the performance of alternate service (excusal from alternate service). 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. Alternate service was to be performed under the supervision of the Selective Service System. When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual’s former military service. The military services issued the actual Clemency Discharges. The Clemency Discharge is a neutral discharge, issued neither under “honorable conditions” nor under “other than honorable conditions.” It is to be considered as ranking between an undesirable discharge and a general discharge. 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). While there is no change in benefit status per se, a recipient may apply to the Department of Veterans Affairs for benefits.

Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3. The Board has noted the applicant's contentions that the FSM believed at the time that his reason for going AWOL to find his sister was more important to him than satisfying his contract with the Army and the Board understands his position in this matter. However, given the amount of time he remained absent (6+ years) and the fact that he was apprehended as a deserter and had not found his sister is indicative that he had no intention of returning.

4. The Board has also noted the applicant's contention that the FSM was a decorated combat veteran and that she, as his spouse is being denied Veterans benefits because of his discharge. However, the Board does not find that his service was such that an absence of this length warrants an upgrade just to make him or his survivors eligible to receive benefits that he lost as a result of his misconduct.

5. 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.

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

___jm___ __kan___ __le_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090842
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/10/02
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1973/12/03
DISCHARGE AUTHORITY	AR 635-200, para 11-2
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.