RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 OCTOBER 2005
      DOCKET NUMBER:  AR20040010858


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 that his records be corrected by upgrading his
discharge.

2.  The applicant states that he received a letter granting him a clemency
discharge, however the discharge was neutral; it was not honorable or less
than honorable.  He is a veteran of the Vietnam War and is suffering from
medical problems and needs help.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) and clemency documents in
support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 November 1972.  The application submitted in this case is
dated
10 November 2004.

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 limitations 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.  The applicant enlisted and entered active duty on 18 April 1967, for a
period of 3 years.  He served in Korea from January 1968 to March 1968, and
in Vietnam from April 1968 to April 1969.

4.  On 10 November 1969, he was convicted by a special court-martial of
being absent without leave (AWOL) from 2 September 1969 to 25 October 1969.
He was sentenced to a reduction and extra duty.

5.  On 22 May 1970, he was convicted by a special court-martial of being
AWOL from 11 November 1969 to 13 May 1970.  He was sentenced to confinement
at hard labor for 5 months, and a forfeiture of pay for 4 months.

6.  On 11 August 1972, he was convicted by a special court-martial of being
AWOL from 13 August 1970 to 24 June 1972.  He was sentenced to confinement
at hard labor for 1 month and a bad conduct discharge.  On 8 September
1972, the convening authority approved only so much of the sentence as
provided for a bad conduct discharge.

7.  On 8 September 1972, the applicant’s request for excess leave was
approved.

8.  On 10 October 1972, the United States Army Court of Military Review
affirmed the findings and sentence.

9.  The applicant was discharged on 30 November 1972, under the provisions
of Army Regulation 635-200, Chapter 11.  His DD Form 214 indicates he had
      2 years, 7 months, and 16 days of creditable service and 783 days of
lost time.

10.  On 1 November 1975, the applicant was notified that President Ford had
granted him clemency for his AWOL offense under Presidential Proclamation
4313.  The President granted him a full and unconditional Pardon and
Clemency Discharge to replace his less than honorable discharge.  He was
informed that the pardon would restore any federal civil rights which he
lost upon his criminal conviction.  His pardon would also be helpful in
restoring certain state civil rights, such as his right to vote, and to
obtain a license to work in certain occupations from which he had been
barred by state law.  He was also informed that his Clemency Discharge was
considered a neutral discharge, neither honorable nor less than honorable

11.  On 28 January 1980, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

12.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

13.  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 Department of Veterans Affairs (VA).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's separation was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering the facts of the case, and there is no
justification to warrant upgrading his discharge.

3.  The applicant was granted a clemency discharge under Presidential
Proclamation 4313, which restored his civil rights but did not change the
underlying discharge.  His Clemency Discharge, considered a “Neutral”
discharge, did not entitle him to any benefits administered by the VA and
did not require the underlying discharge be upgraded in order to secure
such benefits.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 28 January 1980.
As a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 27 January 1983.  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

__TK  ___  __PM___  __CK ___  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.




                                  ______Ted Kanamine________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010858                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051013                                |
|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.                      |                                        |


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