RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 February 2008
	DOCKET NUMBER:  AR20070014013 


	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.  Rial D. Coleman

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Ms. Marla J. N. Troup

Member

Mr. David R. Gallagher

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, an upgrade of his undesirable discharge.

2.  The applicant states, in effect, that on 16 January 1976, he received Presidential Clemency for the offenses he committed which led to his undesirable discharge.

3.  The applicant provides a self-authored letter, a letter from the Department of Veterans Affairs Health Eligibility Center, a letter from the Department of Veterans Affairs Edith Nourse Rogers Memorial Veterans Hospital, a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty), and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) as documentary evidence in support of his application.

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 record shows he enlisted in the Army at the age of 17, entered active duty on 28 May 1969, and was discharged on 26 October 1971.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 63C (General Vehicle Repairman).  The highest rank the applicant attained while serving on active duty was specialist four (SP4)/pay grade E-4.  He was stationed in Germany for the period of 21 January 1970 through 22 May 
1971 and the Republic of Vietnam for the period of 23 May 1971 through 
19 October 1971.


3.  The applicant’s record reveals a disciplinary history that began during his assignment in Germany and includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful possession of marijuana on 25 March 1971.

4.  The applicant's record also includes disciplinary charges preferred against him under the UCMJ for being absent without leave (AWOL) for nine days during the period 12 September 1971 through 20 September 1971.  The applicant was also charged with uttering a bad check while he was in an AWOL status.

5.  On 28 September 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and he acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant elected not to submit a statement on his own behalf to accompany his request for discharge.

6.  On 19 October 1971, the separation authority approved the applicant's request and directed his separation under the provisions of chapter 
10 of Army Regulation 635-200 and that he receive an Undesirable Discharge Certificate.  On 26 October 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, 4 months, and 20 days of creditable active military service and an under other than honorable conditions character of service.

7.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of the applicant's DA Form 20 (Enlisted Qualification Record) for the period ending 26 October 1971, shows that he was AWOL during the period 12 September 1971 through 20 September 1971.  Item 30 (Remarks) of his DD Form 214 shows 9 days lost time under section 972 Title 10 United States Code during his period of being AWOL.

8.  In February 1972, the applicant submitted a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) requesting an upgrade of his discharge.

9.  Office of the Adjutant General, Reserve Components Personnel and Administration Center letter, dated 23 March 1973, informed the applicant that the Army Discharge Review Board (ADRB) had reviewed his discharge.  As a result of the review, the ADRB determined that he had been properly discharged and his request for a change in the type and nature of his discharge was denied.

10.  The applicant's record contains a self-authored letter addressed to the Presidential Clemency Board, dated 22 January 1975.  The letter shows, in effect, the applicant appealed to the Presidential Clemency Board to upgrade his discharge based on the premise that he had been deprived of social standing and benefits promised to him by the Army.  He continued that immature patriotism and the possibility of being inducted were the reasons he enlisted in the Army.  The applicant further stated that while stationed in Germany, he did not believe that he was contributing to the war effort and volunteered to be reassigned to the Republic of Vietnam.  He stated that after going home on leave, his opinion of the war changed prior to his actual reassignment to the Republic of Vietnam.  Upon arrival in the Republic of Vietnam, the applicant applied for Conscientious Objector status and was assigned duties that did not require him to carry a weapon pending a determination on his request.  The applicant states that his request was denied because it was not based upon religious beliefs.  The applicant continued that he then decided to pursue early separation from the Army and was advised by counsel that his only alternative was to apply for a separation under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations).  The applicant states he was further advised that in order to be eligible for this type of separation, he would have to commit a crime that would warrant trial by court-martial.  He continues that the only reason he went AWOL and declined punishment under the provisions of Article 15 of the UCMJ was to become eligible to request separation under the provisions of Chapter 10 of AR 635-200.  The applicant concludes that since his discharge, he has become a productive member of society and is deserving of an upgrade.


11.  The applicant's record contains an unsigned and undated letter from the Office of the Adjutant General, Reserve Components Personnel and Administration Center.  This letter informed the applicant that he was awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1974.  The letter further informed the applicant that he may apply to the Army Discharge Review Board for review and possible change of his discharge.  The letter also makes reference to a DD Form 1953A (Clemency Discharge) and 
DD Form 215 as enclosures.

12.  The applicant's record contains an unsigned DD Form 215, dated 
16 January 1976, which indicates Item 30 (Remarks) of the applicant's DD Form 214 for the period ending 26 October 1971 should be corrected to include the following statement:  "DD [Form] 1953A Clemency Discharge issued Pursuant to Presidential Proclamation No [Number] 4313."  There is no DD Form 1953A in the applicant's available record.

13.  DD Form 2069 (Instruction Sheet - DOD Discharge Review Program (Special)), dated 20 April 1977, shows the applicant submitted an application for an upgrade of his discharge to the Joint Service Liaison, Department of Defense Discharge Review Program (Special).

14.  Department of the Army, Military Review Boards Agency letter dated, 
2 June 1977, shows the Army Discharge Review Board informed the applicant that his discharge had been reviewed.  As a result of this review, the board determined that he had been properly discharged and his request for a change in the type and nature of his discharge was denied.  This letter afforded the applicant an opportunity to appeal the decision of the board by 7 July 1977.  The letter concluded by informing the applicant that if no response was received by the suspense date, his case would become final under this program.  The applicant was provided a copy of DD Form 2067 (Case Report and Directive Discharge Review Board Statement of Findings, Conclusions & Reasons) as an enclosure with the letter.

15.  Department of the Army, Office of the Adjutant General and the Adjutant General Center letter, dated 3 August 1977, informed the applicant that the ADRB had determined he had been properly discharged and that his request for a change in the type and nature of his discharge had been denied.

16.  The applicant provides a letter from the Department of Veterans Affairs (VA) Health Eligibility Center, dated 15 August 2007, which confirms his enrollment in the VA health care system and informs him that he is enrolled in Priority Group 6.

17.  The applicant provides a letter from the Department of Veterans Affairs Edith Nourse Rogers Memorial Veterans Hospital, dated 5 September 2007, thanking him for his participation in the VA Agent Orange Registry.  The letter also informs the applicant that his diagnosis of prostate cancer is recognized by the VA as being associated with Agent Orange Exposure and provides him information for submitting a claim.

18.  Presidential Proclamation 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 Presidential Proclamation 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.

19.  A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as Presidential Proclamation 4313 Extension).  This memorandum mandated the issuance of a general discharge to individuals who had:  (1) applied for consideration under Presidential Proclamation 4313; (2) been wounded in action or decorated for valor; and (3) records free of any compelling reason to deny relief.  This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals.  Whether the individuals had performed alternate service was not an issue to be considered.

20.  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.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  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 there from in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.  

21.  Public Law 95-126 provided in pertinent part for a "Relook Program."  All cases upgraded from under other than honorable conditions under the SDRP or extension to Presidential Proclamation 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits. Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures.

22.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge based on his receipt of a clemency discharge.

2.  The evidence of record confirms that the applicant was charged with offenses that are punishable under the Uniform Code of Military Justice with a punitive discharge.  After consulting with military counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  Discharge under chapter 10 of AR 635-200 requires an admission of guilt to the offenses charged.  Evidence shows the applicant's administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

4.  Evidence indicates the applicant received a Clemency Discharge under the Presidential Proclamation 4313 of 16 September 1974 based upon his claim that he had been denied Conscientious Objector status.  However, this Clemency Discharge does not alter the undesirable discharge he received as a result of his extensive misconduct and does not entitle him to any benefits administered by the Department of Veterans Affairs.  Furthermore, there is no indication that the applicant ever requested Conscientious Objector status in his available record.

5.  After a review of the applicant's record of service, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Additionally, his service is deemed undesirable in view of his nonjudicial punishment and lost time due to AWOL.  Therefore, he is not entitled to either a general or an honorable discharge.

6.  Based on the foregoing, the applicant's undesirable discharge is correct as currently constituted and there is no basis to upgrade his discharge.

7.  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.
`
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_RTD_ __  _MJNT_  __DRG___  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.





_Richard T. Dunbar__
          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.