RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2007
      DOCKET NUMBER:  AR20060015072


      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      |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. William Crain                 |     |Member               |
|     |Mr. Dale 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 undesirable discharge be upgraded to an
honorable discharge.

2.  The applicant states that all he is asking for is what is his.  He
states that he fought for his Country with pride and that he would gladly
do it again.  He states that he loves the United States of America and that
he gets upset when he sees someone burning the flag or talking bad about
this Country.  He states that he needs his veterans' benefits and that he
knows people who served in the military during the Vietnam War; however,
they never served more than 400 miles away from home.  He states that these
people joined the Reserves and today, they have veterans' benefits.

3.  The applicant goes on to state that he is just an old country preacher
who tried all of his life to help someone else in need and now he is the
one in need.  He states that when he left home to enter the Army, he
believed that his Country would take care of him.  He states that when he
returned home he had nothing but pain and sorrow as he had lost his home,
his car and his family.  He states that he was called a baby killer and
that individuals that serve in the Army today are called heroes.  He states
that there are people that went to college or to Canada and protested the
War and these people became leaders of this Country, Senators, Congressmen
and even Presidents.  He states that he did not protest the Vietnam War or
leave this Country to keep from fighting and that he would not leave today.
 He states that he will not go away as he believes that it is time to see
if he means as much to this Country as this Country means to him.

4.  The applicant further states that he cannot count the hours that he put
into community service; and that we all make mistakes as he has allowed
this issue to go as long as it has without doing something.  He states that
he was a good Soldier and that his records will show how fast he "came up
in rank".  He states that his record shows nothing but honor; however, when
he goes to the veterans' hospital to pray, be feels like an outcast.  He
concludes by stating, in effect, that the type of discharge that he
received is not right in the eyes of God.

5.  The applicant provides in support of his applications a copy of a State
of Georgia Delayed Certificate of Birth and four letters from friends and
associates attesting to his good character and post service conduct.




CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 January 1975.  The application submitted in this case
is dated 17 October 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.  On 18 April 1966, he was inducted into the Army in Atlanta, Georgia.
He was promoted to the pay grade of E-2 on 16 June 1966 and he was promoted
to the pay grade of E-3 on 22 August 1966.  On 26 August 1966, upon
completion of is training as a field wireman, he was transferred to
Vietnam.

4.  The available records indicate that the applicant's conduct and
efficiency ratings were excellent while he was serving in Vietnam.  He was
promoted to the pay grade of E-4 on 12 May 1967.

5.  The applicant returned to the Continental United States on 26 July 1967
and he was assigned to Headquarters Headquarters Company, 197th Infantry
Brigade, Fort Benning, Georgia.

6.  On 4 October 1967, the applicant went absent without leave (AWOL) and
he remained absent in desertion until he was apprehended by civilian
authorities on 4 January 1968.

7.  On 25 January 1968, the applicant again went AWOL.

8. In a letter dated 25 November 1974, the applicant's wife was notified
that by Presidential Proclamation No. 4313, 16 September 1974, the
President of the United States established a program of clemency for
individuals who absented themselves without leave, were dropped from the
rolls, or who missed movement during the time frame 4 August 1964 through
28 March 1973, and who had no other offenses other than those listed in the
body of the notification.  She was informed that the applicant's records
had been reviewed and it was determined that he was eligible to participate
in the program.  The applicant's wife was further informed that in order to
participate in the program, her husband must agree to participate in the
Presidents Program; agree to reaffirm his allegiance to the United States;
and pledge to perform alternate service for a period not to exceed 24
months.  She was told that prior to undertaking these obligations, the
applicant would be afforded an opportunity to consult with military lawyer
or other counsel of his choosing.  She was further informed that another
requirement for participation in the program was that her husband must
physically present himself at Fort Benjamin Harrison prior to the end of
the program (31 January 1975).

9.  In the letter dated 25 November 1974, the applicant's wife was informed
that if the applicant participated in the program he would not be
restrained in any manner nor prosecuted; that upon completion of necessary
legal counseling and a medical examination he would be furnished an
undesirable discharge; and that as directed by Presidential Proclamation,
he would not be entitled to any benefits administered by the Veterans
Administration (VA).  The applicant's wife was told that the impact of an
undesirable discharge could be reduced by successful completion of the
alternate service mentioned, at which time a clemency discharge would be
issued.  She was told that participation in and separation from the Army
under the President's Program would remove his status as a fugitive and his
criminal liability under military law for his offenses.

10.  The applicant returned to military control on 30 January 1975.  On
31 January 1975, he voluntarily requested discharge for the good of the
service pursuant to the provision of Presidential Proclamation No. 4314,
16 September 1974.  In his request the applicant indicated that he
understood that he would be furnished an Undesirable Discharge Certificate;
that he would be deprived of all service benefits; that he would be
ineligible for all benefits administered by the VA; and that he may be
deprived of his rights and benefits as a veteran under both Federal and
State Law.  The applicant further indicated that he understood that within
15 days of the date of receipt of his Undesirable Discharge Certificate, he
must report to his State Director of Selective Service to arrange for
performance of alternate service; that he understood that satisfactory
completion of such alternate service would be acknowledged by the issuance
of a Clemency Discharge Certificate; and that he realized that such
certificate would not alter his ineligibility for any benefits predicated
upon his military service.

11.  Accordingly, on 31 January 1975, the applicant was discharged under
the provision of Presidential Proclamation No. 4313, 16 September 1974 and
Department of Defense Memorandum Subject:  Implementation of Presidential
Proclamation No. 4313, 16 September 1974.  He had completed 1 year,
5 months and 18 days of total active service and he was furnished an
Undesirable Discharge Certificate.

12.  On 31 January 1975, the applicant submitted a Reaffirmation of
Allegiance and Pledge to Complete Alternate Service.  However, the
available records fail to show that the applicant ever successfully
completed his alternate service or that he was furnished a Clemency
Discharge Certificate.

13.  A review of the available records fails to show that the applicant
ever applied to the Army Discharge Review Board for an upgrade of his
discharge within that board's 15-year statute of limitations.

14.  Presidential Proclamation 4313, issued on 16 September 1974, affected
three groups of individuals.  These groups were fugitives from justice who
were draft evaders; members of the Armed Forces who were in an unauthorized
absence status; and prior members of the Armed Forces who had been
discharged with a punitive discharge for violations of Articles 85, 86, or
87 of the Uniform Code of Military Justice.  The last 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 make a determination regarding the
performance of alternate service.  That board was authorized to award a
Clemency Discharge without the performance of alternate service (excusal
from alternate service).  The dates of eligibility for consideration under
this proclamation for those already discharged from the military service
were 4 August 1964 to 28 March 1973, inclusive.  Alternate service was to
be performed under the supervision of the Selective Service System.  When
the period of alternate service was completed satisfactorily, the Selective
Service System notified the individual’s former military service.  The
military services issued the actual Clemency Discharges.  The Clemency
Discharge is a neutral discharge, issued neither under “honorable
conditions” nor under “other than honorable conditions.”  A Clemency
Discharge does not affect the underlying discharge and does not entitle the
individual to any benefits administered by the Department of Veterans
Affairs (formerly Veterans Administration).  While there is no change in
benefit status per se, a recipient may apply to the Department of Veterans
Affairs for benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative discharge under Presidential
Proclamation 4313 was accomplished in accordance with applicable laws and
regulations with no indication of any violations of the applicant’s rights.

2.  According to the available evidence of record, the type of discharge
directed and the reasons therefore were appropriate considering all the
facts of the case.

3.  The applicant's contentions have been noted.  However, they are not
completely substantiated by the evidence of record.  While he did serve
honorably in Vietnam, that service alone does not constitute the award or
issuance of an Honorable Discharge Certificate.

4.  The Board has also considered the letter that the applicant submitted
in support of his application.  However, he was AWOL from 4 October 1967 to
4 January 1968; and he was AWOL again from 25 January 1968 until 30 January
1975.  He was AWOL longer than he served in an honorable status.
Additionally, once he returned to military control he pledged to
successfully complete alternate service in order to be furnished a Clemency
Discharge Certificate and there is no evidence in the available record nor
has he submitted any evidence to show that he successfully completed his
alternate service.  Therefore, in the absence of evidence to the contrary,
it must be presumed that what the Army did in the applicant's case was
correct.

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 this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 January 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 January 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

___WP __  __WC___  __DD___  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 Powers_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015072                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070426                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19750731                                |
|DISCHARGE AUTHORITY     |Presidential Proclamation No. 4313      |
|DISCHARGE REASON        |For the Good of the Service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000/ADMINISTRATIVE DISCHARGE       |
|2.  950                 |144.0009/PRESIDENTIAL PROCLAMATION      |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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