RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 February 2008
      DOCKET NUMBER:  AR20070014966


      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. Linda D. Simmons              |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. John G. Heck                  |     |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 discharge be upgraded to honorable.

2.  The applicant states that his commander refused to listen to his
problem or to give him help to resolve his problem; that before he came
into the service he had psychiatric problems but they did not believe him
and when he asked for help all they did was kick him out; that he applied
for conscientious objector status, and when he was turned down he had to go
absent without leave (AWOL) since he did not want to kill anybody; that he
received a Clemency Discharge and he thinks the Service should forgive him,
too; and that he was separated for unfitness without having had a chance to
see a psychiatrist or have a mental status examination.

3.  The applicant provides a DD Form 293 (Application for the Review of
Discharge from the Armed Forces of the United States); a DD Form
     215 (Correction to DD Form 214, Report of Separation from Active
Duty); a copy of his Selective Service System Status Card; and his Clemency
Discharge packet.

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 completed an enlistment physical examination on 16
November 1972.  On his Standard Form 93 (Report of Medical History), he
indicated that his health was “Exelent” (sic).

3.  The applicant enlisted in the Regular Army on 28 November 1972 for 3
years for the train and travel enlistment option (Army Career Group 64
(Motor Transport)-Europe).  He did not complete basic combat training.

4.  On 1 March 1973, court-martial charges were preferred against the
applicant charging him with three specifications of AWOL:  from on or about
24 January to on or about 10 February 1973; from on or about 10 to on or
about 14 February 1973; and from on or about 16 to on or about 27 February
1973.

5.  On 7 March 1973, the applicant completed a “Chapter 212” separation
physical and was found qualified for separation.  He indicated on the
Standard Form 88 (Report of Medical Examination) “I am in good [health].”

6.  On 15 March 1973, after consulting with legal counsel, the applicant
voluntarily requested a discharge under the provisions of Army Regulation
  635-200, chapter 10 for the good of the service in lieu of trial by court-
martial.  He was advised of the possible effects of an undesirable
discharge and that he might be deprived of many or all Army and Veterans
Administration benefits.  He submitted a statement in his own behalf,
wherein he stated that he hated the Army and had no desire to stick around
it.

7.  On 1 April 1973, the appropriate authority approved the applicant’s
request and directed he receive an Undesirable Discharge Certificate.

8.  On 4 April 1973, the applicant was discharged, in pay grade E-1, under
the provisions of Army Regulation 635-200, chapter 10, for the good of the
service with an undesirable discharge and a characterization of service of
under other than honorable conditions.  He had completed 2 months and 15
days of creditable active service and had 53 days of lost time.

9.  On 31 May 1974, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an upgraded discharge.  In his application to the
ADRB the applicant stated that he enlisted wanting to be trained as a
plumber.  His recruiter told him the field was full but by time he finished
basic training there would be an opening.  His recruiter told him he could
change his contract in basic training.  He tried, but he was told he would
have to reenlist for 3 years.  He was too scared to talk to his commander,
but he was sent to the chaplain.  The chaplain just told him to try to
accept what was happening.  He was granted permission to see the
psychiatrist, but when his commander saw him waiting he asked the applicant
if he was playing crazy.  He told his commander no, that he was upset and
wished to speak to the doctor.  He did not get to see the doctor.  At the
barracks, some of the guys told him to go AWOL.  He did, and when he
returned he was placed in the stockade.  He was told he could “fill out a
212, which was ‘Conscientious Objector.’”  That action was started but it
would take a long time.  Then he was offered a chapter 10, which would have
gotten him out of the Army sooner.  As the reason for his request, he
originally entered something like psychiatric reasons or mental pressure.
He was told that was not strong enough to get him out of the Army, so he
stated he hated the Army.

10.  Around March 1976, the applicant applied for Presidential Clemency.
His application packet indicates that he applied for conscientious objector
status after his return from his last AWOL.  Around January 1977, he was
granted Presidential Clemency.

11.  The applicant’s records contained a letter, dated 3 February 1988,
from the Office of the District Attorney, County of Los Angeles
(California).  The letter noted that during the course of an investigation
the applicant was identified as the person responsible for a homicide
involving a .45 pistol.  The applicant was tried for the murder in October
1986, but the jury was hung 11-to-1 for guilt.  A retrial was scheduled for
8 February 1988.  The applicant testified at the trial that the murder
weapon (not available because he gave it away to an unknown person) was an
Army .45.  The results, if any, of the February 1988 trial are not known.

12.  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.

13.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for unfitness and
unsuitability.  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 unsuitability.

14.  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.

15.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  It is regrettable that the applicant initially signed a written
enlistment contract that did not guarantee his training as a plumber;
however, that was his decision. He could have waited until the field opened
up before he enlisted.  It appears his commander did try to help him.  When
the applicant brought the issue up with his commander, he was told he would
have to reenlist for 3 years.  A reenlistment at that point would only have
added another month or two to his initial 3-year enlistment.

2.  There is no evidence of record to show that the applicant had
psychiatric problems before he came into the service.  To the contrary,
when he completed his enlistment physical examination on 16 November 1972
he indicated that he was in excellent health.

3.  There is no evidence of record to show that the applicant asked for
psychiatric help at any time before he was told he had to reenlist in order
to train as a plumber.  In addition, in his statement with his ADRB
application he stated only that wished to speak to the psychiatrist because
he was upset, not that he was having any psychiatric problems.

4.  The applicant contended, in his ADRB application, that he applied for
conscientious objector status, and when he was turned down he had to go
AWOL since he did not want to kill anybody.  However, the evidence of
record and his statement shows that he was initially being processed for a
“Chapter 212” separation.  Army Regulation 635-212 set forth the basic
authority for the separation of enlisted personnel for unfitness and
unsuitability, not for conscientious objector status.

5.  The applicant contended that he received a Clemency Discharge and he
thinks the Service should forgive him, too.  However, a Clemency Discharge
did not affect the underlying discharge.  Given the applicant’s three AWOLs
before he completed basic combat training, the type of discharge given was
and still is appropriate.

6.  The applicant contended that he was separated for unfitness without
having had a chance to see a psychiatrist or have a mental status
examination.  The applicant was not separated for unfitness, under the
provisions of Army Regulation 635-212.  He was discharged for the good of
the service in lieu of trial by court-martial.  A mental status evaluation
was not required.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds____ __lmd___  __jgh___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070014966                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20080226                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19730404                                |
|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.                      |                                        |


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