RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            02 MAY 2006
      DOCKET NUMBER:   AR20050011982


      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. William Powers                |     |Chairperson          |
|     |Ms. Sherry Stone                  |     |Member               |
|     |Mr. Randolph Fleming              |     |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 / Clemency
Discharge be upgraded so as to allow him to receive veterans benefits.

2.  The applicant states, in effect, that he served his country honorably
in Vietnam, never questioning a movement and in many cases volunteered for
additional hazardous duties.  He goes on to state that at one point he was
hospitalized in Japan for hyper-ventilation and seizures.  He continues by
stating that when he returned home on leave he found that his mother and
step-father were having severe problems, that the step-father had left the
home and took the family car, leaving his mother without a means to get to
work.  Additionally, his mother did not drive.  He further states that he
bought a car and started driving her to work while on leave.  When he
reported to Fort Bragg, North Carolina, he discovered that his step-father
had damaged the car and broke the television, which pushed him over the
edge and caused him to go straight back to Kentucky.  These actions caused
him to be court-martialed and placed in the stockade.  Knowing that he
would have to make up the bad time, he opted to accept the undesirable
discharge.  He also states that he applied for a Clemency Discharge and
received it, thinking that his position had been settled with the Army and
he now discovers that his Clemency Discharge does not qualify for veterans
benefits.  He requests that the Board upgrade his discharge so that he may
receive assistance for service-connected disabilities.

3.  The applicant provides copies of his “Full Pardon” and Clemency
Discharge, Correspondence from the Department of Veterans Affairs (VA), and
copies of correspondence to his congressional representatives.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 January 1967.  The application submitted in this case is
dated 1 August 2005.

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.  His records, although somewhat incomplete, show that he enlisted in
Ashland, Kentucky, on 24 September 1963, for a period of 3 years.  He
completed his basic combat training and advanced individual training at
Fort Knox, Kentucky, and was transferred to Fort Benning, Georgia, to
undergo basic airborne training. Upon completion of his airborne training
he was transferred to Fort Campbell, Kentucky.

4.  On 20 June 1964, while serving in the pay grade of E-2, he was
convicted by a special court-martial of the wrongful appropriation of a
privately owned vehicle (62’ Buick) belonging to a staff sergeant and
driving without a valid drivers license.  He was sentenced to be reduced to
the pay grade of E-1, a forfeiture of pay for 6 months and confinement at
hard labor for 6 months.  However, the convening authority approved only so
much of the sentence as provided for hard labor without confinement for 1
month, reduction to the pay grade of E-1 and the forfeiture of pay.  That
portion of the sentence to confinement at hard labor for the remaining
5 months was suspended for a period of 5 months, unless sooner vacated.

5.  On 18 July 1964, nonjudicial punishment (NJP) was imposed against him
for conduct unbecoming a Soldier.  His punishment consisted of extra duty
and restriction for 14 days.

6.  The applicant went absent without leave (AWOL) on 1 September 1964 and
remained absent until 18 September 1964.  Although not fully explained in
the available records, his 20 June 1964, suspended sentenced was vacated on
21 September 1964, and he was placed in confinement.

7.  On 17 October 1964, he was convicted by a special court-martial of
failure to sign out on leave and wrongfully appropriating money from
another Soldier.  He plead guilty to the charges against him and was
sentenced to confinement at hard labor for 6 months and a forfeiture of
pay.  On 9 December 1964, his sentence was set aside and all rights and
privileges and property were restored.

8.  On 4 June 1965, NJP was imposed against him for failure to go to his
place of duty.  His punishment consisted of restriction and extra duty for
14 days.

9.  On 8 July 1965, he was transferred to Vietnam with his unit for duty as
a light weapons infantryman and was advanced to the pay grade of E-3 on 29
July 1965.  His records also show that he was a patient in the Army
hospital at Camp Zama, Japan from 24 December 1965 to 11 January 1966, when
he was returned to his unit.  There is no indication that he was wounded.
10.  He was advanced to the pay grade of E-4 on 26 May 1966 and he departed
Vietnam on 14 June 1966 for assignment to Fort Bragg, North Carolina.  He
arrived at Fort Bragg on 5 August 1966 and he went AWOL on 14 August 1966.
He remained absent until he returned to military control at Fort Knox on
16 October 1966, where charges were preferred against him for the AWOL
charges.

11.  On 30 November 1966, he was convicted by a special court-martial of
being absent without leave from 14 August to 16 October 1966.  He plead
guilty and was sentenced to confinement at hard labor for 6 months and a
forfeiture of pay.

12.  The facts and circumstances surrounding his administrative discharge
are not present in the available records.  However, his records do contain
a duly constituted report of separation (DD Form 214) which shows that he
was discharged under other than honorable conditions on 10 January 1967,
under the provisions of Army Regulation 635-212 for unfitness, due to his
frequent involvement in incidents of a discreditable nature with
civil/military authorities.  He had served 2 years, 7 months and 6 days of
total active service and had 252 days of lost time due to AWOL and
confinement.  He had served 11 months and 6 days of overseas service in
Vietnam and was awarded the Combat Infantryman Badge and the Vietnam
Service Medal.

13.  At the time of his separation he was briefed on the procedures to
apply for a review of his discharge by the Army Discharge Review Board.
Additionally, the remainder of the unexecuted portion of his court-martial
sentence was remitted effective the date of his discharge.

14.  On 18 March 1976, the applicant was notified that he was awarded a
Clemency Discharge (Full Pardon) pursuant to Presidential Proclamation 4313
of 16 September 1974.  He was also advised at that time that he could apply
to the Army Discharge Review Board (ADRB) for an upgrade of his discharge
and was provided the form necessary to do so.

15.  There is no indication in the available records to show that the
applicant ever applied to the ADRB for an upgrade of his discharge within
that board’s 15-year statute of limitations.

16.  Army Regulation 635-212, in effect, at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 6a(1) of the
regulation provided, in pertinent part, that members involved in frequent
incidents of a discreditable nature with civil or military authorities were
subject to separation for unfitness.  An undesirable discharge was normally
considered appropriate.
17.  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.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.

2.  The character of the discharge appears to be commensurate with the
applicant’s overall record of service when considering the circumstances of
the case and the fact that his misconduct began well before his service in
Vietnam.

3.  The applicant’s contentions and supporting documents have been noted by
the Board.  However, the multiple offenses committed by the applicant when
compared to his overall record of service is too undistinguished for
equitable relief to be appropriate.

4.  The applicant’s administrative discharge under Presidential
Proclamation 4313 was accomplished in accordance with applicable laws and
regulations with no indication of any loss of the applicant’s rights.

5.  The applicant was properly informed at the time he was issued a
Presidential Pardon under Presidential Proclamation 4313 that it was
considered a neutral discharge, neither honorable or less than honorable.
He was also informed of the procedures to apply for an upgrade of his
discharge to the ADRB and it appears that he never applied to that board
within its 15-year statute of limitations.

6.  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 that requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 January 1967; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 9 January 1970.  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

___WP __  ___SS __  ___RF __  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.




                                  ______William Powers_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011982                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060502                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1967/01/10                              |
|DISCHARGE AUTHORITY     |AR635-212/ FI . . . . .                 |
|DISCHARGE REASON        |UNFIT                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |583/A51.00                              |
|1.144.5000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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