RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2006
	DOCKET NUMBER:  AR20060014410 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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 discharge characterized as under conditions other than honorable be upgraded to an honorable under the provisions of the Presidential Amnesty Act of 1977.

2.  The applicant provided no additional statements on this application.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a page from the Unitarian Universalist Association website in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 August 1971, the date of his discharge.  The application submitted in this case is dated 14 April 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's records show he enlisted in the Army on 14 January 1969 for a period of three years.  He completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 51N (Water Supply Specialist).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.  

4.  The record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on nine occasions for the following offenses:2 June 1970, for being in an off limits area on 10 May 1970; 6 June 1970, for failure to obey a lawful order on 28 May 1970; 4 January 1971, for failure to go to his prescribe place of duty on 1 January 1971; 17 February 1971, for being absent from his prescribed place of duty on 11 February 1971; 16 March 1971, being absent from his prescribed place of duty on 15 March 1971; 22 March 1971, for possession of marijuana on 16 March 1971; 18 May 1971, being absent without leave (AWOL during the period on or about 12 May 1971 through on or about 14 May 1971; 16 June 1971, being absent from his place of duty on 7 June 1971; 16 June 1971, and failure to go at the time prescribed to his appointed place of duty and being absent without proper authority on 14 June 1971. 

5.  On 10 March 1971, a summary court-martial convicted the applicant of being AWOL from on or about 0730 hours on 29 March 1971 through on or about 1700 hours on 29 March 1971; failure to go to his appointed place of duty on 27 March 1971; failure to go to his appointed place of duty on 28 March 1971; failure to go to his appointed place of duty on 29 March 1971; failure to go to his appointed place of duty on 30 March 1971; failure to go to his appointed place of duty on 12 April 1971; failure to go to his appointed place of duty on 9 April 1971;and failure to go to his appointed place of duty on 10 April 1971.  The resultant sentence included confinement at hard labor for 30 days and a reduction to private/pay grade E-1.  

6.  On 11 May 1971, the applicant was advised that he was being transferred for rehabilitative purposes under the provisions of Army Regulation 635-212 (Personnel Separations), counseled that he was being given a second chance, and advised that if he were to get into trouble again he would be recommended for an undesirable discharge.

7.  On 17 June 1971, the unit commander advised the applicant that he was recommending the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness for continued service due to persistent shirking of duty and drug use.  

8.  The applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel.  

9.  On 18 August 1971, the separation authority directed the applicant’s separation under the provisions of Army Regulation 635-212 for unfitness and that he receive an Undesirable Discharge Certificate.  On 18 August 1971, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 2 years, 6 months and 21 days of creditable active military service and that he accrued a total of 27 days of time lost.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  There is no evidence that the applicant's requested a clemency discharge in accordance with the Presidential Proclamation 4313, issued on 16 September 1974.

12.  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 public work program specifically designated for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable discharge, would be retained.

13.  Army Regulation 635-200, paragraph 3-7, 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.

14.  Army Regulation 635-200, paragraph 3-7, 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's contention that his discharge should be upgraded based on the Presidential Proclamation 4313, issued on 16 September 1974 was carefully considered and determined to be without merit.

2.  The record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  Additionally, the applicant was given the opportunity to continue his military service when he was granted a rehabilitative transfer.  He was advised at that time he was being given a second chance and he continued to shirk his military duties and participate in drug use.

3.  The applicant's record of service included nine nonjudical punishment and a summary court-martial.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  There is no evidence that the applicant was declared a deserter during his military service.  Presidential Proclamation 4313 provided that eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable discharge, would be retained.

5.  There is no evidence in the available records and the applicant did not provide sufficient evidence showing that he requested discharge for the good of the service and/or successfully completed alternative service.  As a result, there is no basis to amend the applicant's separation document as requested.





6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 August 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 August 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

_DED_____  _WDP_  __WFC__  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 F. Crain_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
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.