RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070008868 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Mr. Jose A. Martinez

Member

Mr. Chester A. Damian

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 “FOR THE CONVENIENCE OF THE GOVERNMENT.”

2.  The applicant states he was admitted to a nursing home in March 2004 with a terminal condition.  He wishes to achieve a position of honor in his life before he dies.  Soldiers who deserted from the Army and went to Canada were all pardoned for their desertion.  His violations were caused by drugs.  He did not shirk his duties and responsibilities with a clear mind.  He knows there is absolutely no excuse for using drugs; however, he was young and a “Hell Raiser” at that time.  He was not drafted; he volunteered.  By God’s power he was able to break the hold that drugs had on him.

3.  The applicant provides three letters of support, two undated and one dated  29 December 2006.

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 was born on 29 March 1950.  He enlisted in the Regular Army on 20 March 1973.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  On 18 July 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 3 July to on or about 17 July 1973.

4.  On 12 September 1973, the applicant accepted NJP under Article 15, UCMJ for being AWOL from on or about 4 September to on or about 7 September 1973.

5.  A DA Form 4187 (Personnel Action) indicates the applicant was hospitalized on 11 July 1974 for multiple gunshot wounds to his head and arm and that his line of duty status was undetermined.

6.  A DA Form 4187 shows the applicant departed AWOL on 23 September 1974.  Another DA Form 4187 shows his duty status changed from AWOL to civilian confinement on 26 September 1974.  Another DA Form 4187 shows his duty status changed from civil confinement to present for duty on 17 December 1974.

7.  The court-martial charge sheet and the applicant’s discharge packet are not available.

8.  The applicant’s DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 11 March 1975, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a characterization of service of under other than honorable conditions.  He had completed 1 year, 8 months, and 8 days of creditable active service and had   104 days of lost time.

9.  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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  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.

10.  Army Regulation 635-200, paragraph 3-7a, 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.  

11.  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.

12.  Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313   or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel 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 Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.  

13.  A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension).  This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) records free of any compelling reason to deny relief.  

14.  The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.”  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused therefrom in accordance with PP 4313 of 16 September 1974.  

DISCUSSION AND CONCLUSIONS:

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

2.  It is noted that the applicant was almost 23 years old when he enlisted.  

3.  The applicant contends that Soldiers who deserted from the Army and went to Canada were all pardoned for their desertion.  However, that is not entirely true.  Under PP 4313, members of the Armed Forces who were in an unauthorized absence status were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted.  Those who elected discharge and satisfactorily completed the required alternate service would be entitled to receive a Clemency Discharge.  However, the Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.  

4.  The other two programs afforded to members who were in an unauthorized absence status, the PP 4313 Extension and the SDRP, both essentially required the member to have served satisfactorily in Vietnam before their discharge would be upgraded or considered for upgrade.  

5.  The applicant’s current medical problems are unfortunate.  However, he has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in this case were in error or unjust.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__bje___  __jam___  __cad___  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.




__Barbara J. Ellis____
          CHAIRPERSON



INDEX

CASE ID
AR20070008868
SUFFIX

RECON

DATE BOARDED
20071108
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19750311
DISCHARGE AUTHORITY
AR 635-200, ch 10
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.