RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070018800 


	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:


Mr. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 absences without leave (AWOL) during this time period were pardoned by President Nixon.  He had personal conflicts/problems with his sergeant, so he left to prevent getting in further trouble.  While on active duty his service was exemplary.  Since being discharged, he has been a model citizen.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 enlisted in the Regular Army on 27 February 1971.  He completed basic combat training and advanced individual training (AIT) and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  While in AIT, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on two occasions.  On 3 June 1971 he accepted NJP for failing to go to his appointed place of duty; on 24 June 1971 he again accepted NJP for being AWOL from on or about 14 to on or about 23 June 1971.

4.  On 10 January 1972, the applicant accepted NJP under Article 15, UCMJ for being AWOL from on or about 31 December 1971 to on or about 9 January 1972.

5.  On 7 April 1972, the applicant accepted NJP under Article 15, UCMJ for being disrespectful in language towards his superior noncommissioned officer.

6.  The applicant departed AWOL on 17 October 1972.

7.  On 25 February 1975, the applicant contacted the Army requesting to participate in the program established by Presidential Proclamation 4314        (PP 4314) of 16 September 1974.  The Army responded by informing him he would be given an opportunity to request a discharge for the good of the service, to reaffirm his allegiance to his country, and to pledge to perform alternate service for a period not to exceed 24 months.  He was informed that servicemen who satisfactorily completed an assigned period of alternate service of not more than 24 months would be issued a Clemency Discharge Certificate.  

8.  The applicant opted to sign a Reaffirmation of Allegiance and a Pledge of Public Service and to accept an Undesirable Discharge.

9.  On 28 February 1975, the applicant reaffirmed his allegiance to the United States of America and pledged to complete alternate service.

10.  On 28 February 1975, 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.  He understood that his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the UCMJ and could lead to the imposition of a bad conduct or dishonorable discharge.  He indicated that he was making the request of his own free will and had not been subject to any coercion whatsoever by any person.  He understood that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  

11.  On 28 February 1975, the applicant completed a separation physical and was found qualified for separation.

12.  A Joint Alternate Service Board determined the applicant would be required to serve 22 months of alternate service.

13.  On 28 February 1975, the applicant was discharged, with an undesirable discharge and a characterization of service of under other than honorable conditions, under the provisions of PP 4313.  He had completed 1 year,              7 months, and 14 days of creditable active service and had 503 days of lost time. 


14.  In a letter, dated 22 May 1975, to the Reserve Components Personnel and Administration Center, the Selective Service System stated that it had terminated the applicant from enrollment in the Reconciliation Service Program due to his noncooperation with efforts to place him on an approvable job.  He had signed a statement declining to participate.

15.  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 Veterans Administration.  

16.  Army Regulation 635-200 governs the separation of enlisted personnel.  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.  

17.  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’s service while on active duty was not exemplary.  Prior to his departing AWOL in October 1972 he had accepted NJP under Article 15, UCMJ on four occasions.  Two of those occasions were for AWOL.  Two of those Article 15s were given to him while he was still in AIT, before he could have had any “personal conflicts/problems with his sergeant, so he left to prevent getting in further trouble.”

2.  Part of the pardon process which the applicant mentions was to pledge to complete alternate service.  The applicant turned himself in and opted to sign a Reaffirmation of Allegiance and a Pledge of Public Service and accept an Undesirable Discharge.  However, he never completed the alternate service. 

3.  Even if the applicant had completed the alternate service, the Clemency Discharge he would have received would not have affected his underlying discharge.  Given the overall quality of his service and the length of his last AWOL, the characterization of his discharge as under other than honorable conditions was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __lmd___  __jrm___  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.




__John T. Meixell_____
          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.