RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 July 2006
      DOCKET NUMBER:   AR20060000079


      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 Vick                    |     |Chairperson          |
|     |Ms. Barbara Ellis                 |     |Member               |
|     |Mr. Donald Lewy                   |     |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 undesirable discharge be upgraded to
honorable.

2.  The applicant states, in effect, that he initially volunteered for the
draft out of a sense of patriotism because he felt a responsibility to
serve his country.  He goes on to state that he served his tour of duty in
Vietnam and was honorably discharged.  He goes on to state that he
subsequently learned that a friend of his had been killed in Vietnam and he
went to a recruiter to reenlist for his old unit in Vietnam.  He continues
by stating that his recruiter assured him that he would be assigned to his
old unit in Vietnam; however, that did not materialize.  He was initially
assigned stateside and went absent without leave (AWOL) because he felt he
had been misled.  He was subsequently assigned back to Vietnam, but not to
his old unit.  After returning to the United States and seeing the climate
of the country at the time, he became disheartened with life in the
military and began a series of going AWOL.  He also states that he has
worked hard to overcome his discharge and is now employed with a firm that
has a Department of Defense (DOD) contract and he needs his discharge
upgraded so as to obtain a security clearance.  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.

3.  The applicant provides copies of his Presidential Pardon and his DD
Form 215 (Correction to DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 August 1973.  The application submitted in this case is
dated 19 December 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.  The applicant was inducted in Los Angeles, California, on 7 December
1965.  He successfully completed his training as a vehicle driver and was
transferred to Vietnam on 28 August 1966, where he remained until 9
September 1967, when he was transferred to Oakland Army Base, California
for his honorable release from active duty in the pay grade of E-4.  He had
served 1 year, 9 months and 3 days of total active service.

4.  On 26 July 1968, he enlisted in the Regular Army in Los Angeles for a
period of three years and was assigned to Fort Ord, California.

5.  On 10 August 1968, he went AWOL and remained absent in a deserter
status until he was returned to military control on 15 November 1968.

6.  On 4 December 1968, he was convicted by a special court-martial of
being AWOL from 10 August to 14 November 1968.  He was sentenced to
confinement at hard labor for 5 months (suspended for 5 months), a
forfeiture of pay and reduction to the pay grade of E-1.

7.  He again went AWOL on 7 December 1968 and remained absent in a deserter
status until he was returned to military control on 1 May 1969 and charges
were preferred against him.  In addition, his previous suspension of
sentence to confinement at hard labor was vacated.

8.  He was convicted by a special court-martial on 20 May 1969 of being
AWOL from 7 December 1968 to 1 May 1969.  He was sentenced to confinement
at hard labor for 3 months (suspended for 3 months) and a forfeiture of
pay.

9.  He was transferred to Vietnam on 28 June 1970 and served there until 4
June 1971, when he was transferred to Fort Knox, Kentucky.  He went AWOL on
16 July 1971 and remained absent in a deserter status until he was
apprehended by civil authorities on 8 July 1973 and was returned to
military control, when charges were preferred against him for the AWOL
offenses.

10.  The facts and circumstances surrounding the applicant’s 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 at Fort Or,
California, on
28 August 1973, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 5 years, 2 months and
8 days of total active service and had 914 days of lost time due to AWOL.

11.  On 1 March 1976, the applicant was granted a Clemency Discharge
pursuant to Presidential Proclamation Number 4313.  He was also advised of
the procedures to apply to the Army Discharge Review Board for an upgrade
of his discharge.

12.  There is no evidence in the available records to show that he ever
applied to the ADRB for an upgrade of his discharge.

13.  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.

14.  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 condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of 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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

4.  The applicant’s contentions and supporting documents have been noted.
However, they are not sufficiently mitigating to warrant relief when
compared to the extensive length of his absences and his overall record of
service.

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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 August 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 August 1976.  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

___JV___  ____BE _  ___DL __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board
unanimously determined that the evidence presented was sufficient to
warrant relief.

2.  The applicant served a tour in Vietnam after volunteering for the
draft, returned to the United States in 1967, and experienced problems.  He
reenlisted in the Regular Army in 1968 and left his unit in an AWOL status
twice.  He received two special courts-martial and was sentenced to serve a
total of
8 months in military confinement.  He volunteered for a second tour of duty
in Vietnam in 1970 and returned 13 months later in 1971.  He left his unit
in an AWOL status again and subsequently, he was given an undesirable
discharge.

3.  The applicant applied for a Presidential Pardon and it was granted on 1
March 1976.  He was required to complete two tasks:  The Selective Service
System Program for servicemen who were granted clemency discharges, which
he completed on 20 January 1976.  He was also advised on how to apply to
the Army Discharge Review Board for a discharge upgrade which he did not
do.  The Presidential Pardon Board considered three classes of individuals,
draft dodgers, deserters and individuals like the applicant, and many in
all three classes were granted relief.

4.  The applicant apparently has been a good citizen for many years.
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.


                                  ______James Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000079                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1973/08/28                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |( DENY)                                 |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |                                        |
|1.144.7000/689/a70.00   |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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