RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060014944 


	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.


x

	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, reconsideration of his earlier request to upgrade his undesirable discharge and his clemency discharge to an honorable discharge. 

2.  In a letter from his Congressman, the Congressman states, in effect, the applicant submitted his appeal within one year of the Board’s original decision.

3.  The applicant provides a letter, dated 18 October 2006, from the Chief, Congressional and Special Actions Branch, Army Review Boards Agency, Arlington, Virginia; a copy of a Domestic Return Receipt, dated 25 June 2004; a letter dated, 2 March 2006, from the Director, Army Board for Correction of Military Records, Arlington, Virginia; a letter of support from a retired colonel; an information in support of his claim for service connection for Post Traumatic Stress Disorder.  Counsel resubmitted the letter, dated 3 June 2002, from a Licensed Independent Clinical Social Worker (LICSW).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002081480 on 10 July 2003.

2.  The applicant has provided new evidence that will be considered by the Board.  

3.  The applicant enlisted in the Regular Army on 30 November 1966.  He completed basic combat training at Fort Gordon, Georgia and advanced individual training at Fort Knox, Kentucky.  He was awarded military occupational specialty 76A (supply clerk).  

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) on the applicant’s DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 19 April 1967 to 27 April 1967.  There is no record of nonjudicial punishment for this period of AWOL.

5.  On 15 September 1967, the applicant was convicted by a special court-martial of being AWOL from 20 June 1967 to 17 July 1967 and 23 July 1967 to 9 August 1967.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $64.00 pay per month for 3 months.
6.  He was advanced to private first class on 20 November 1967.

7.  The applicant was assigned to Vietnam on 30 January 1968.

8.  Between June 1968 and November 1968, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on three separate occasions for sleeping on post as a sentinel; for being present in an off-limits area on two occasions; and for disobeying a lawful order.  His punishments consisted of forfeitures of pay, reductions to private E-2 and private E-1, restrictions, and extra duties.  He was also counseled by his command on six occasions during this period.

9.  On 19 December 1968, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-212 for unfitness.  He based his recommendation on the applicant’s unsatisfactory performance and numerous disciplinary infractions.  After consulting with counsel, the applicant waived his rights and elected not to submit statements in his own behalf.   

10.  The applicant was barred from reenlistment on 24 December 1968.  He departed Vietnam on 18 February 1969.

11.  The separation authority’s approval of the recommendation for discharge is not in the available records.  However, orders show the applicant was discharged on 18 February 1969 under other than honorable conditions discharge (undesirable discharge).  He completed 1 year, 10 months, and 7 days of creditable service with 132 days of lost time due to AWOL and confinement.  

12.  The applicant applied to the Army Discharge Review Board (ADRB) on 26 August 1969.  The ADRB determined that his discharge was proper and denied his request on 7 January 1970.

13.  The applicant’s DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty), dated 26 January 1976, shows he was issued a DD Form 1953A (Clemency Discharge Certificate) pursuant to Presidential Proclamation Number 4313 of 16 September 1974.

14.  The applicant provided a letter of support.  The individual stated, in effect, that he had known the applicant since grammar school.  The applicant got married and raised a wonderful family after he came home from the Army.  He described the applicant as being an outstanding father and a cherished grandfather who has had steady employment. He stated the applicant is a volunteer in his community and in his church.  In addition, he stated the applicant has helped the underprivileged, the elderly, and the disabled for many years.  He stated the applicant served in a very unpopular war when many of their generation never answered the call.  He believed the applicant has paid a very high price already for his poor judgment as a very young Soldier.  In conclusion, he requests favorable consideration of the applicant’s request for upgrade of his discharge.

15.  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.

16.  Presidential Proclamation 4313 dated 16 September 1974 was issued by President Ford and affected three groups of individuals.  One group was prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of Articles 85, 86 or 87 (desertion, AWOL, and missing movement, respectively) of the Uniform Code of Military Justice.  This 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 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 Presidential Board was authorized to award a Clemency Discharge without the performance of alternate service (excusal from alternate service).  The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Department of Veterans Administration.

17.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

18.  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.

19.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation under the provisions of Army Regulation 635-212 was accomplished in compliance with applicable regulations at that time.  There is no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant’s service records show he was AWOL for 9 days and was convicted by a special court-martial for being AWOL on two separate occasions for 44 days prior to his tour in Vietnam.  While in Vietnam, he received three Article 15s and a bar to reenlistment.  His overall military service did not meet the standards of acceptable conduct and performance of duty for Army personnel sufficient to warrant an honorable discharge.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  It is noted that the applicant was granted a clemency discharge which under the provisions of Presidential Proclamation 4313 did not change the characterization of his undesirable discharge.

4.  The applicant’s letter of support was carefully reviewed.  However, this document is not sufficient to warrant an upgrade in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x_____ x_____x_____  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR set forth in Docket Number AR2002081480, dated 10 July 2003.



x_________
          CHAIRPERSON




INDEX

CASE ID
AR20060014944
SUFFIX

RECON
20030710
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19690218
DISCHARGE AUTHORITY
AR635-212
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.