RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 APRIL 2007
      DOCKET NUMBER:  AR20060009912


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |                                  |     |Analyst              |

      The following members, a quorum, were present:

|     |                                  |     |Chairperson          |
|     |                                  |     |Member               |
|     |                                  |     |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 was informed that President Carter granted
clemency to draft dodgers and feels he is eligible for an upgrade of his
undesirable discharge.

3.  The applicant provides no additional evidence in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 December 1971.  The application submitted in this case is
dated 3 July 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 Regular Army on 11 February 1969, for a
period of 3 years.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows the
applicant was absent without leave (AWOL) from 13 March 1969 to 20 March
1969, and from 2 October 1969 to 30 October 1969.

5.  On 26 June 1970, the applicant was convicted by a special court-martial
of being AWOL from 8 January 1970 to 4 April 1970.  The court sentenced him
to
confinement at hard labor for 4 months, forfeiture of $88.00 pay per month
for
4 months, and reduction to pay grade E-1.

6.  On 10 May 1971, the applicant was convicted by a special court-martial
of being AWOL from 12 December 1970 to 24 March 1971, and from 30 March
1971 to 15 April 1971.  He was sentenced to confinement at hard labor for
5 months, forfeiture of $95.00 per month for 5 months and reduction to pay
grade E-1.
7.  The applicant's DA Form 20 shows he was in military confinement or AWOL
from 18 April to 13 May 1971, 14 May 1971 to 21 June 1971, and 30 September
1971 to 21 November 1971.

8.  On 11 May 1971, certification by the Chief, Neuropsychiatry Services
found the applicant mentally responsible, able to distinguish right from
wrong and adhere to the right, had the mental capacity to understand and
participate in board proceedings, and that there was no disqualifying
mental or physical defects sufficient to warrant disposition through
medical channels.

9.  On 28 April 1971, the applicant's commander recommended his discharge
prior to expiration of his term of service under the provisions or Army
Regulation 635-212 for unfitness.  Elimination was recommended because the
applicant had accumulated approximately 418 days of bad time through
periods of AWOL and confinement.  He had been convicted on AWOL charges by
one special court-martial, and was pending a second special court-martial
for two subsequent AWOL periods.  The applicant was notified of the pending
elimination action on 28 April 1971.

10.  On 29 April 1971, a medical examination cleared the applicant for
separation.

11.  Additional facts and circumstances concerning the applicant's
discharge proceedings are not in the available records.  However, on 22
December 1971, the applicant was discharged under the provisions of Army
Regulation 635-200, Chapter 10, for the good of the service, under other
than honorable conditions.  His DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) indicates he and 1 year, 4 months
and 23 days of creditable service and 498 days of lost time.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that 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 the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.



13.  Presidential Proclamation 4313, issued on 16 September 1974, by
President Ford, 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 Veterans
Administration.

DISCUSSION AND CONCLUSIONS:

1.  Presidential Proclamation 4313 was implemented on 16 September 1974, by
then President Ford.  The proclamation provided that certain categories of
person who were permitted to apply for a clemency discharge.  While the
applicant may have been eligible for this program, there is no evidence
that he ever applied for the program or completed any of the required
alternate service.  The program is no longer available, and even if the
applicant had fulfilled the requirements the clemency discharge would not
have affected his underlying discharge, and would not have entitled him to
any Department of the Veterans Affairs (VA) benefits.

2.  In the absence of evidence to the contrary, it is presumed that the
applicant's discharge proceedings were conducted in accordance with law and
regulation applicable at the time.

3.  The applicant voluntarily requested separation under the provisions of
Army Regulation 635-200, Chapter 10, for the good of the service – in lieu
of trial by court-martial.

4.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

5.  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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.


7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 December 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 21 December 1974.  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

___JS___  __DH ___  ___JH___  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.




                                  ______ _______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009912                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070419                                |
|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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