RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 SEPTEMBER 2006
      DOCKET NUMBER:  AR20060000130


      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. William Crain                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. David Tucker                  |     |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 he was issued a clemency discharge in recognition
of completion of alternate service, under the provisions of Presidential
Proclamation 4313.  However, his DD Form 214 (Armored Forces of the United
States Report of Transfer or Discharge) has not been changed to reflect
this information.

3.  The applicant further states that he is in need of medical help and
needs his discharge upgraded so that he can get medial benefits.

4.  The applicant provides a copy of his DD Form 241, DD Form 215
(Correction to DD Form 214, Report of Separation from Active Duty), a
letter notifying him of his Clemency discharge, and a 7 April 1970 letter
from the Department of the Army to his mother concerning his applying to
the Army Discharge Review Board for upgrade of his discharge, in support of
his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 October 1968.  The application submitted in this case is
dated 28 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 enlisted in the Regular Army on 17 October 1967, for a
period of 3 years.

4.  On 21 March 1968, he accepted nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice (UCMJ), for
being absent without leave (AWOL) from 5 March 1968 to 19 March 1968.  His
punishment was reduction to Private E-1, a forfeiture of pay, restriction
and extra duty.

5.  On 1 April 1968, he accepted NJP under the provisions of Article 15,
UCMJ, for disobeying a lawful order.  His punishment was restriction, extra
duty and a forfeiture of pay.

6.  On 10 May 1968, he accepted NJP under the provisions of Article 15,
UCMJ, for disobeying a lawful order, being absent from his place of duty,
and being AWOL from 4 May 1968 to 9 May 1968.  His punishment was
restriction, extra duty and a forfeiture of pay.

7.  On 9 August 1968, he was convicted by a special court-martial of
disobeying a lawful order to leave the orderly room and for being
disrespectful in language to a superior noncommissioned officer.  He was
sentenced to confinement at hard labor for 3 months, and a forfeiture of
pay for 3 months.

8.  The facts and circumstances concerning the applicant’s discharge
proceedings are not in the available records.  However, his DD Form 214
shows he was discharged on 28 October 1968, under the provisions of Army
Regulation 635-212, with an under other than honorable conditions
discharge.  His DD Form 214 also indicates he had 9 months and 28 days of
creditable service and 75 days of lost time.

9.  On 2 August 1976, the applicant was informed that he had been granted a
Clemency Discharge; pursuant to Presidential Proclamation 4313, dated
     16 September 1974.  He was given a DD Form 215 to be attached to his
        DD Form 214, which added a statement in item 30, which read “DD
Form 1953A Clemency Discharge issued in recognition of satisfactory
completion of alternate service pursuant to Presidential Proclamation No
4313.”

10.  The applicant was further advised that he could apply to the Army
Discharge Review Board (ADRB) for review and possible change to his
discharge.  There is no evidence that the applicant applied to the ADRB to
upgrade his discharge.

11.  On 20 November 1989, this Board responded to a request from the
applicant to correct his DD Form 214 to reflect his Clemency discharge.
The applicant was informed that his DD Form 214 had been amended by the
issuance of a DD Form 215.  It was explained to the applicant that a new DD
Form 214 would not be issued, and that the procedures for correcting a DD
Form 214 was the issuances of a DD Form 215.




12.  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.

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 effect the underlying discharge and did not
entitle the individual to any benefits administered by the Veterans
Administration.  Soldiers who were AWOL entered the program by returning to
military control and accepting a discharge in lieu of trial by court-
martial.

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 applicant was granted a Clemency discharge, however, it did not
affect his underlying discharge, and did not entitle him to any Department
of Veterans Affairs (VA) benefits.

3.  The character of the applicant’s discharge is commensurate with his
overall record of military service, and there is no justification for
upgrading his discharge.

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 should have discovered the alleged error or
injustice now under consideration on 28 October 1968; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on          27 October 1971.  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

___WC  _  ___JR___  ___DT __  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 Crain________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000130                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060921                                |
|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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