RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 August 2007
      DOCKET NUMBER:  AR20070003716


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. William Blakely               |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 undesirable discharge be
upgraded to an honorable discharge under the Presidential Proclamation.

2.  The applicant states that when all of the draft dodgers were pardoned
and were allowed to return home, his discharge was supposed to be upgraded
automatically.

3.  The applicant provides in support of his application, a copy of his
Report of Transfer or Discharge (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 January 1967.  The application submitted in this case
is dated 29 February 2007.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 7 March 1963, the applicant enlisted in the Army in Charlotte, North
Carolina, for 3 years, in the pay grade of E-1.  He successfully completed
his training as a combat engineer.

4.  He was promoted to the pay grade of E-2 on 7 July 1963; promoted to the
pay grade of E-3 on 12 November 1963; and promoted to the pay grade of E-4
on 23 October 1964.

5.  On 16 March 1965, the applicant was convicted by a special court-
martial of quitting his post without proper relief on 12 February 1965; of
being absent without leave (AWOL) for 20 hours on 22 February 1965; and of
breaking restriction.  He was sentenced to confinement at hard labor; a
reduction in pay grade, and a forfeiture of pay.

6.  Nonjudicial punishment (NJP) was imposed against the applicant on 9
July 1965, for failure to go to his appointed place of duty (reveille
formation).  His punishment consisted of extra duty.

7.  On 3 November 1965, NJP was imposed against him for being absent from
his unit for 6 hours.  His punishment consisted of a reduction in pay grade
and a forfeiture of pay.

8.  On 12 April 1966, NJP was imposed against the applicant for failure to
obey a lawful order.  His punishment consisted of a forfeiture of pay,
restriction and extra duty.

9.  The applicant was convicted by a special court-martial on 12 October
1966, of being AWOL from 9 July 1966 until 12 July 1966 and from 13 July
1966 until 17 August 1966.  His punishment consisted of a confinement at
hard labor, a reduction in pay grade and a forfeiture of pay.

10.  On 3 November 1966, the applicant was notified that he was being
recommended for discharge under the provisions of Army Regulation 635-212
for unfitness.  He acknowledged receipt of the notification and, after
consulting with counsel, he waived all of his rights and he opted not to
submit a statement in his own behalf.  However, during an interview, the
applicant stated that after his first court-martial, he wanted to "go
straight in the Army".  He stated that his wife deserted him and went with
another man.  He stated that he did not realize his responsibilities in the
Army and that he decided to go after her in an effort to seek
reconciliation.  He stated that after failing to effect reconciliation with
his wife, he lost all interest in life and in his military career.  He
stated that, regardless to how, he wanted to be discharged from the
service.

11.  The appropriate authority approved the recommendation for discharge
and he directed the issuance of an undesirable discharge.  Accordingly, on
25 January 1967, the applicant was discharged under the provisions of Army
Regulation 635-212, for unfitness, based on frequent incidents of a
discreditable nature with civil or military authorities.  He had completed
3 years, 5 months and 27 days of total active service and he had
approximately 144 days of lost time due to AWOL and confinement.  He was
furnished an Undesirable Discharge Certificate.

12.  A review of the available records fails to show that the applicant
ever applied to the Army Discharge Review Board for an upgrade of his
discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 6a(1) of 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 unfitness.  An undesirable discharge was normally
considered appropriate.

14.  Presidential Proclamation 4313 was issued by President Ford and
affected three groups of individuals.  These groups were: (1) Fugitives
from justice who were draft evaders; (2) Members of the Armed Forces who
were in an unauthorized absence status; and (3) prior members of the Armed
Forces who had been discharged with a punitive or undesirable discharge for
violation of Articles 85, 86, or 87 of the UCMJ.  The individuals who were
absent from the Armed Forces were afforded an opportunity to return to
military control and elect either an Undesirable Discharge under PP 4313 or
to stand trial for their offenses and take whatever punishment resulted.
For those who elect 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 the individuals
completed the service satisfactorily, they would be entitled to receive a
Clemency Discharge.  The third group could apply to the Presidential
Clemency Board which was made of individuals appointed by the President
(members were civilians, retired military and members of the Reserve
Components) who would make a similar determination regarding the
performance of alternate service.  Both the Joint Board and Presidential
Board were authorized to award a Clemency Discharge with the performance of
alternate service.  In practice, the Joint Board did not take such action
while the Presidential Board did in many cases.  The dates of eligibility
for consideration under PP 4313 for those already discharged from the
military service were 4 August 1964 to 28 March 1973 inclusive.  Alternate
Service was to be performed under the supervision of the Selective Service
System.  The individual was responsible for finding a job that met the
requirements of the program.  He would obtain the approval of his state
Selective Service officials regarding the job and reports would be
furnished periodically as to how he was performing.  When the period of
alternate service was completed satisfactorily, the Selective Service
System notified the individual’s former military service.  The military
service issued the actual 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.





15.  A Presidential Memorandum was issued by President Ford on 19 January
1977. This memorandum mandated the issuance of a General Discharge to
individuals who had: (1) applied for consideration under PP4313; (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 Army Discharge
Review Board from the President and was to be applied by the board without
any applications from the affected individuals.  Whether the individuals
had performed alternate service was not an issue to be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted; however, they are
unsupported by the evidence of record.  There is no evidence in the
available record nor has he submitted any evidence to show that he was told
that his discharge would be upgraded automatically.    There is also no
evidence in the available record that show that he ever completed alternate
service; that he was ever granted a presidential pardon; or that he was
ever awarded a clemency discharge in accordance with the Presidential
Proclamation.

4.  The applicant was discharged for unfitness due to frequent incidents of
a discreditable nature with civil or military authorities and he was
furnished an undesirable discharge.  Therefore, he had no 6-year service
obligation.  He was convicted by two special courts-martial and he had NJP
imposed against him on three separate occasions.  Considering his numerous
acts of indiscipline it does not appear that the undesirable discharge that
he was furnished was too harsh.

5.  In order to justify correction of a military record the applicant must
show 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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.




7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 January 1967; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 24 January 1970.  The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__DLL___  __WDP__  __WB___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ___William D. Powers__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070003716                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070816                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000/ADMINISTRATIVE DISCHARGE       |
|2.  583                 |144.5000/UNFITNESS                      |
|3.  592                 |144.5100/FREQ INVOL W/ MIL AUTHORITIES  |
|4. 950                  |1440009/PRESIDENTIAL PROCLAMATION       |
|5.                      |                                        |
|6.                      |                                        |


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