RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 August 2005
      DOCKET NUMBER:  AR20040005939


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      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, in effect, that his undesirable discharge be
upgraded to honorable.

2.  The applicant states, in effect, that he believes that his discharge
was racially related and believes that he deserves a fully honorable
discharge because he received a Clemency Discharge with a full pardon.  He
further states that he had faced racial prejudice at home and did not need
to face it in Korea because he was young and proud and he was raised that
way.  He further states that he thought everything was right when he
received his Clemency Discharge; however, he has seen people who were
pardoned from prison receive better treatment than him and he has nothing
to look forward to.  However, he has been a good citizen since his
discharge.

3.  The applicant provides four third party character references with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 October 1970.  The application submitted in this case is
dated 1 May 2004 and was received on 19 August 2004 from a service
organization.

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.  He was born on 20 September 1945 and was inducted in Baltimore,
Maryland, on 11 May 1966.  He completed his training and was transferred to
Germany on 13 October 1966, where he was assigned to an infantry company as
a rifleman.

4.  He was advanced to the pay grade of E-3 on 16 November 1966 and on
21 May 1967 he was honorably discharged for the purpose of immediate
reenlistment.

5.  On 22 May 1967, he reenlisted for a period of 4 years.  He was advanced
to the pay grade of E-4 on 19 June 1967 and on 22 January 1968, he departed
Germany for assignment to Vietnam.

6.  He arrived in Vietnam on 27 February 1968 and served there as an
automatic rifleman until 22 February 1969, when he was transferred to Fort
Benning, Georgia.  He remained at Fort Benning until 22 August 1969, when
he was transferred to Aberdeen Proving Ground (APG), Maryland.  He remained
at APG until 6 April 1970, when he departed for assignment to Korea.

7.  The available records show that prior to reporting to Korea, the
applicant was reported as being absent without leave (AWOL) from 2 May to 5
May 1970.  The record is silent as to any punishment imposed for that
offense.  He arrived in Korea on 8 May 1970 and was assigned to an infantry
company of the
2nd Infantry Division.

8.  The facts and circumstances surrounding the applicant’s administrative
discharge are not present in the available records.  They, along with his
medical records, were transferred to the Department of Veterans Affairs
(VA) Regional Office in Baltimore, Maryland, on 19 August 1971, to assist
in that agency’s claim adjudication of claim number C-26754984.  However,
his records do contain a duly authenticated DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge), signed by the
applicant, which shows that he was discharged at Fort Lewis, Washington, on
23 October 1970, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 3 years, 4 months and
28 days of total active service during his current enlistment and had a
total of 4 years, 5 months and 9 days of total active service.

9.  On 25 June 1976, the applicant was notified that he was being awarded a
Clemency Discharge pursuant to Presidential Proclamation 4313 of
16 September 1974.  He was also advised that he could apply to the Army
Discharge Review Board (ADRB) for review and possible change to his
discharge.  He was also provided the form to apply to the ADRB.  However,
there is no evidence in the available records to show that he applied to
the ADRB within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 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.
Under today’s standards, an individual must admit guilt to the charges
against them in order for a request for such a discharge to be initiated.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  Absent evidence to the contrary, it must be presumed that the
applicant’s voluntary request for separation under the provisions of Army
Regulation       635-200, chapter 10, for the good of the service, to avoid
trial by court-martial, was administratively correct and in conformance
with applicable regulations, with no violations of the applicant’s rights.


2.  Accordingly, it must also be presumed that the type of discharge
directed and the reasons therefore were appropriate under the
circumstances.

3.  It is noted that the applicant does not explain or deny the misconduct
that served as the basis for his discharge.  Given the lack of the facts
and circumstances surrounding his discharge, it would not be appropriate to
upgrade his discharge based on his record of service or post-service
conduct without knowing the nature of the misconduct/offense for which he
was charged.

4.  Therefore, lacking the facts and circumstances surrounding his
administrative discharge, there appears to be an insufficient basis to
upgrade his discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 October 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 October 1976.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jev___  __rjw___  ___rr___  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.



                                  James E. Vick
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005939                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19701023                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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