RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070004553 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. Dean A. Camarella

Member

Mr. Qawiy A. Sabree

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, that his discharge under conditions other than honorable be upgraded to an general discharge under honorable conditions.

2.  The applicant states, in effect, that individuals who deserted during the same period of time that he served were granted full Presidential pardons.  He requests similar consideration, along with a general discharge under honorable conditions.

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military service records show he enlisted in the U.S. Army for a period of 3 years and entered active duty on 15 November 1972.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  He was advanced to the rank of private/pay grade E-2 on 15 March 1973.

3.  The applicant's military service records show that following completion of AIT, on 11 April 1973, he was assigned to the 416th Transportation Company,
46th Engineer Battalion, Fort Rucker, Alabama.

4.  The applicant’s military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 4 June 1973.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for violating a lawful general regulation by leaving his weapon unsecured.  This document shows that the applicant did not demand trial by court-martial nor did he submit matters in extenuation, mitigation or defense.  This document also shows that the company commander imposed punishment against the applicant that consisted of reduction to the grade to private (E-1) and forfeiture of $75.00 for 1 month, both suspended for 30 days.

5.  The applicant’s military service records contain a copy of a DA Form 2627-1, dated 14 August 1973.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for, without authority, absenting himself from his unit from on or about 2 August 1973 until on or about 13 August 1973.  This document shows that the applicant did not demand trial by court-martial nor did he submit matters in extenuation, mitigation, or defense.  This document also shows that the battalion commander imposed punishment against the applicant that consisted of reduction to the grade to private (E-1) and extra duty for 45 days.

6.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration of Term of Service]) of this document shows that the applicant was absent without leave (AWOL) for 11 days from 2 August 1973 through 12 August 1973, and AWOL for 125 days from 4 September 1973 through 6 January 1974.  Item 38 (Record of Assignments) of the DA Form 20 shows, in pertinent part, that on 3 October 1973, the applicant was dropped from the rolls based on desertion.

7.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 1 March 1974, that shows the applicant’s commander preferred court-martial charges against the applicant for his violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for being absent without authority during the period from on or about 4 September 1973 to on or about 7 January 1974.

8.  On 19 March 1974, the applicant voluntary requested a discharge for the good of the Service, in lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation 635-200.  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the possible effects of an undesirable discharge if the request for discharge is approved, and the rights available to the applicant.

9.  The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished a separation under other than 
honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

10.  On 16 April 1974, the captain serving as Commander, 416th Transportation Company, 46th Engineer Battalion, Fort Rucker, Alabama, indicated that the applicant’s attitude toward the Army “is completely negative” and that he felt “that any further attempts at rehabilitation would be a waste of time and money.”  The company commander recommended approval of the applicant's request for discharge from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200 and requested an Undesirable Discharge Certificate be furnished.

11.  On 17 April 1974, the applicant's request for discharge was endorsed by the lieutenant colonel serving as Commander, 46th Engineer Battalion, Fort Rucker, Alabama, who recommended approval of the applicant's request for discharge for the good of the Service.  The battalion commander also indicated that the applicant’s conduct and efficiency ratings while with the unit were unsatisfactory and recommended an Undesirable Discharge Certificate be issued to him.

12.  On 26 April 1974, the major general serving as Commander, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, approved the applicant's request for discharge from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200 and directed that an Undesirable Discharge Certificate be furnished the applicant.

13.  The applicant's military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 26 April 1974.
This document shows that the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, under conditions other than honorable, and issued a DD Form 258A (Undesirable Discharge Certificate).  At the time of his discharge, the applicant was credited with completing 1 year and 26 days net active service and he had 136 days time lost during the period under review.

14.  The applicant’s military service records show that the highest grade the applicant attained was private/pay grade E-2.  There is no evidence of record showing that the applicant served in the Republic of Vietnam during the Vietnam Conflict.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.
15.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.  There is also no evidence showing the applicant availed himself of the clemency program.

16.  Presidential Proclamation 4313 was issued on 16 September 1974.  It provided, in pertinent part, that individuals absent from the military for a long period of time, primarily in connection with the war in the Republic of Vietnam, could avail themselves of a clemency program.  If they returned to military control, swore allegiance again to the United States and agreed to perform a period of alternate service under the supervision of the Selective Service, a Clemency Discharge would be given in the name of the President.  In essence, this was a neutral discharge and a pardon issued by the President of the United States.  However, the individual would normally receive an undesirable discharge from the military service.  Service discharge review boards and correction boards are not empowered to change the Clemency Discharge, but may review the underlying circumstances of the discharge.

17.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's discharge, set 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 submit a request for discharge for the good of the Service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge under other than honorable conditions is normally considered appropriate.

18.  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.

19.  Army Regulation 635-200, paragraph 3-7c, provides that an undesirable discharge is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge under conditions other than honorable should be upgraded to a general discharge under honorable conditions because individuals who deserted during the same period of time that he served were granted full Presidential pardons.  However, the applicant provides insufficient evidence in support of his claim.

2.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record shows that Clemency Discharges issued pursuant to Presidential Proclamation 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs.  While the Board finds no evidence of record showing the applicant availed himself of the clemency program, the Board also notes that this would not have changed the reason and character of service of the applicant's discharge.

4.  The evidence of record shows the applicant completed 1 year and 26 days of his 3-year enlistment and had 136 days (i.e., over 3 and one-half months) of time lost during the period of service under review.  In addition, the evidence of record shows that his conduct and efficiency were rated as unsatisfactory.  Thus, the evidence of record shows that the applicant’s service during the period under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

5.  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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JCR__  ___DAC_  ___QAS _  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 for correction of the records of the individual concerned.




___Jeffrey C. Redmann___
          CHAIRPERSON




INDEX

CASE ID
AR20070004553
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/09/20
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19740426
DISCHARGE AUTHORITY
AR 635-200, Chapter 10 
DISCHARGE REASON
Discharge for the Good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.