RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 January 2007
      DOCKET NUMBER:  AR20060007631


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Roland S. Venable             |     |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, an upgrade of his discharge to
either an honorable or a general discharge.

2.  The applicant states, in effect, that on 4 August 1975, he received a
Presidential Clemency for the offenses he committed that led to his
undesirable discharge.

3.  The applicant provides a self-authored letter, dated 26 April 2006; a
Presidential Clemency Board Case Summary, dated 26 April 1975; a letter
from the Department of the Army Office of the Adjutant General, Reserve
Components Personnel and Administration Center, St. Louis, Missouri, dated
26 March 1976; a Full Pardon Certificate, dated 4 August 1975; a DD Form
215 (Correction to DD Form 214, Report of Separation from Active Duty),
dated 30 October 1975; a DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge) with an effective date of 23 January 1970;
a DD Form 214 with an effective date of 15 January 1964; and two character
letters in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 August 1975, the date of his clemency pardon.  The
application submitted in this case is dated 11 May 2006.

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 Army on 30 November 1961 for a period of
three years.  After completion of basic and advanced individual training,
he was awarded military occupational specialty 141 (Light and Medium Field
Artillery Crewman).  He reenlisted on 15 January 1964 for a period of six
years and served in the Republic of Vietnam during the period 13 January
1967 through 11 February 1968.


4.  On 9 June 1964, nonjudicial punishment was imposed against the
applicant for receiving a traffic violation for reckless driving at
Schofield Barracks, Oahu, Hawaii on 20 May 1964.  The resultant punishment
consisted of 14 days restriction.

5.  United States Army Training Center and Fort Leonard Wood Special Court-
Martial Order Number 191, dated 21 March 1966, convicted the applicant for
being absent without leave (AWOL) during the period 27 August 1965 through
10 January 1966.  The punishment consisted of confinement for five months
and forfeiture of $83.00 per month for five months.

6.  Headquarters, Fort Sheridan, Fort Sheridan, Illinois Special Court-
Marital Order Number 405, dated 7 September 1966, convicted the applicant
for being AWOL during the period 22 May 1966 through 28 July 1966.  The
punishment consisted of confinement for three months.

7.  Item 44 (Time Lost under Section 972, Title 10, United States Code and
Subsequent to Normal Date ETS) of DA Form 20 (Enlisted Qualification
Record) shows that the applicant was confined during the period 29 July
1966 through 9 October 1966.  Item 44 further shows that the applicant was
AWOL during the following periods:  5 December 1966 through 6 December
1966, 5 January 1967 through 8 January 1967, 26 March 1968 through 14 March
1969, and 27 March 1969 through 21 November 1969.

8.  DD Form 458 (Charge Sheet), dated 15 December 1969, charged the
applicant with being AWOL during the periods 25 March 1968 through 15 March
1969 and 27 March 1969 through 22 November 1969.

9.  On 16 December 1969, the applicant submitted a request for discharge
for the good of the service under the provisions of Chapter 10 of Army
Regulation 635-200 (Active Duty Enlisted Administrative Separations).  In
his request for discharge, the applicant indicated that he had not been
coerced into requesting discharge and had been advised of the implications
that were attached to the request.

10.  The applicant consulted with legal counsel and was advised of the
basis for the contemplated trial by court-martial that provided for a
punitive discharge, the effects of a request for discharge for the good of
the service and of the rights available to him.  He further acknowledged
that he could be discharged under other than honorable conditions and be
furnished an Undesirable Discharge Certificate.  He also stated that he
understood that as a result of receiving such a

discharge, he may be deprived of many or all Army benefits, that he could
be ineligible for many or all benefits administered by the Department of
Veterans Affairs (VA), and that he could be deprived of his rights and
benefits as a veteran under both Federal and State law.  The applicant
submitted a statement on his own behalf with his request for discharge.

11.  The applicant's service records contain an undated statement wherein
he argues that after his return from the Republic of Vietnam his wife left
him and took their children.  He continued that he left his unit to find
his family and when he found them, he stayed with them until March 1969.

12.  The applicant stated that he regrets going AWOL because it has brought
disgrace upon himself and his family.  He continued that he had a job
opportunity in St. Louis, Missouri and requested that his discharge in lieu
of trial by court-martial be approved.

13.  On 6 January 1970, the commander of Special Processing Company,
Special Troops, U.S. Army Training Center Engineer and Fort Leonard Wood
submitted the applicant's request for discharge under the provisions of
Chapter 10 of Army Regulation 635-200.  The commander stated the applicant
was charged with two specifications of AWOL, one period totaling 356 days
and the second period totaling 240 days.  The commander concluded that in
view of the applicant's lengthy periods of AWOL, resistance to authority
and regulations, and a pattern of behavior which renders him a complete
loss to the service, it is felt that a referral for trial by court-martial
would serve no useful purpose.

14.  On 19 January 1970, the Commanding General of the U.S. Army Training
Center Engineer and Fort Leonard Wood approved the applicant's request for
discharge and directed that he be issued an Undesirable Discharge
Certificate.

15.  The applicant's DD Form 214 shows that he was discharged on 23 January
1970 under the provisions of chapter 10 of Army Regulation 635-200, for the
good of the service in lieu of trial by court-martial and issued an
Undesirable Discharge Certificate with service characterized as under other
than honorable conditions.  This form also shows he served 3 years,
7 months, and 19 days of net active service and had 876 days of lost time
and confinement.

16.  The applicant's records contain a letter from the Office of the
Adjutant General, Reserve Components Personnel and Administration Center,
dated 26 March 1976.  This letter informed the applicant that he was
awarded a


clemency discharge pursuant to Presidential Proclamation 4313 on
16 September 1974.  The letter further informed the applicant that he may
apply to the Army Discharge Review Board for review and possible change of
his discharge.

17.  There is no evidence in the available records which shows the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

18.  The applicant submitted two letters of support.  In summary, the
letters stated that the applicant has been a member of Memorial Baptist
Church for many years and is an outstanding deacon.  They continued that
the applicant is a great example of what it takes to endure in spite of
what life deals and that he is a great role model for the younger men that
are married and looking forward to retirement.

19.  Presidential Proclamation 4313, dated 16 September 1974, was issued by
President Ford and affected three groups of individuals.  One group was
members of the Armed Forces who were in an unauthorized absence status.
These individuals were afforded an opportunity to return to military
control and elect either a discharge under other than honorable conditions
under Presidential Proclamation 4313 or to stand trial for their offenses
and take whatever punishment resulted.  For those who elected discharge, a
Joint Alternate Service Board composed of military personnel would
establish a period of alternate service of not more than 24 months that the
individuals would perform.  If they completed the alternate service
satisfactorily, they would be entitled to receive a Clemency Discharge.
The Clemency Discharge did not affect the underlying discharge and did not
entitle the individual to any benefits administered by the VA.

20.  A Presidential Memorandum was issued by President Ford on 19 January
1977 (sometimes referred to as Presidential Proclamation 4313 Extension).
This memorandum mandated the issuance of a general discharge to individuals
who had: (1) applied for consideration under Presidential Proclamation
4313; (2) been wounded in action or decorated for valor; and (3) records
free of any compelling reason to deny relief.  This was a mandate to the
ADRB from the President and was to be applied by the ADRB without any
applications from the affected individuals.  Whether the individuals had
performed alternate service was not an issue to be considered.

21.  The Department of the Army Special Discharge Review Program (SDRP) was
based on a memorandum from Secretary of Defense Brown and is often referred
to as the "Carter Program."  It mandated the upgrade of individual cases in
which the applicant met one of several specified criteria and when the
separation was not based on a specified compelling reason to the contrary.
The ADRB had no discretion in such cases other than to decide whether
recharacterization to fully honorable as opposed to a general discharge was
warranted in a particular case.  An individual who had received a punitive
discharge was not eligible for consideration under the SDRP.  Absentees who
returned to military control under the program were eligible for
consideration after they were processed for separation.  Individuals could
have their discharges upgraded if they met any one of the following
criteria: wounded in action; received a military decoration other than a
service medal; successfully completed an assignment in Southeast Asia;
completed alternate service; received an honorable discharge from a
previous tour of military service; or completed alternate service or
excused there from in accordance with Presidential Proclamation 4313 of
16 September 1974.  Compelling reasons to the contrary to deny discharge
upgrade were desertion/AWOL in or from the combat area; discharge based on
a violent act of misconduct; discharge based on cowardice or misbehavior
before the enemy; or discharge based on an act or misconduct that would be
subject to criminal prosecution under civil law.

22.  Public Law 95-126 provided in pertinent part for a "Relook Program."
All cases upgraded from under other than honorable conditions under the
SDRP or extension to Presidential Proclamation 4313 had to be relooked and
affirmed or not affirmed under uniform standards.  Two of the principal
features of Public Law 95-126 were:  (1) the addition of 180 days of
continuous unauthorized absence to other reasons (e.g., conscientious
objector, deserters) for discharge which act as a specific bar to
eligibility for Veterans Administration (VA) benefits. Such absence must
have been the basis for discharge under other than honorable conditions and
is computed without regard to expiration term of service; and (2)
prospective disqualification for receipt of VA benefits for those
originally qualifying as a result of upgrade by Presidential Memorandum of
19 January 1977 or the SDRP, unless an eligibility determination is made
under the published uniform standards and procedures.

23.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality
of the member's service generally has met the standards of acceptable
conduct
and performance of duty for Army personnel (emphasis added), or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.


24.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge to either an
honorable or a general discharge based on his receipt of a clemency
discharge.

2.  The evidence of record confirms that the applicant was charged with
offenses that are punishable under the Uniform Code of Military Justice
with a punitive discharge.  After consulting with military counsel, the
applicant voluntarily requested discharge from the Army in lieu of trial by
court-martial.

3.  Discharge under Chapter 10 requires an admission of guilt to the
offenses charged.  Evidence shows the applicant's administrative separation
was accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

4.  Evidence shows the applicant received a Clemency Discharge under the
Presidential Proclamation 4313 of 16 September 1974.  However, this
Clemency Discharge does not alter the undesirable discharge he received as
a result of his extensive misconduct and does not entitle him to any
benefits administered by the Department of Veterans Affairs.

5.  After a review of the applicant's record of service, it is evident that
his quality of service did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Additionally, his service is
deemed undesirable in view of his nonjudicial punishment and 876 days of
lost time due to AWOL and confinement.  Therefore, he is not entitled to
either a general or an honorable discharge.

6.  Based on the foregoing, the applicant's undesirable discharge is
correct as currently constituted and there is no basis to upgrade his
discharge.


7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 August 1975; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 3 August 1978.  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

_JTM____  __WDP__  _RSV___  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.




                                      _John T. Meixell___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060007631                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070717                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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