IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080006073 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his undesirable discharge (UD).   

2.  The applicant states, in effect, that he is requesting an upgrade of his discharge based on the clemency discharge he received under the provisions of Presidential Proclamation 4313 (PP 4313) because he never requested an upgrade subsequent to receiving the PP 4313 clemency discharge.     

3.  The applicant provides his separation document (DD Form 214) and a correction to his separation document (DD Form 215) 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 that he initially enlisted in the Regular Army and entered active duty on 19 January 1968, and was trained in and awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  

3.  On 17 October 1968, the applicant was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued at the time shows he held the rank of private first class (PFC) at the time, and that he had completed 8 months and 17 days of active military service.  

4.  On 18 October 1968, the applicant reenlisted for 3 years.  His Enlisted Qualification Record (DA Form 20) shows he served in Germany for 9 months from 7 July 1968 through 27 February 1969, and in the Republic of Vietnam (RVN) from 5 May 1969 through 3 May 1970.  It also shows that he accrued 1,040 days of time lost due to being absent without leave (AWOL) during three separate periods between 4 May 1970 and 13 June 1976.  His record documents no acts of valor or significant achievement.  

5.  On 17 April 1973, a Charge Sheet (DD Form 456) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 4 May 1970 through 8 March 1973.  On 23 May 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UD and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  In his request for discharge, the applicant 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.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UD.  

6.  On 8 June 1973, the separation authority approved the applicant's request for discharge, and directed the applicant be discharged under the provisions of chapter 10, Army Regulation 635-200, and that he receive an UD.  On
13 June 1973, the applicant was discharged accordingly.  DD Form 214 he was issued at the time shows he completed a total of 2 years, 6 months, and 8 days of creditable active military service, and that he accrued a total of 1,040 days of time lost due to AWOL. 

7.  On 16 January 1976, the applicant was advised that he had been awarded a clemency discharge pursuant to PP 4313, dated 16 September 1974.  He was further advised that he could apply to the Army Discharge Review Board (ADRB) for review and a possible change to his discharge.  
8.  The applicant applied to the ADRB requesting an upgrade of his discharge and his case was considered by the ADRB on 30 July 1976.  The ADRB, after careful consideration of the applicant's record of service and the clemency discharge he received under PP 4313, determined his discharge was proper and equitable, and it denied his appeal for an upgrade of his discharge.  

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.  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 UD.

10.  PP 4313, dated 16 September 1974, announced a clemency program designed to provide deserters an opportunity to work their way back into American society.  This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between 4 August 1964 and 28 March 1973.  Under this program, eligible enlisted deserters were offered the opportunity to request an UD for the good of the service if they agreed to perform alternate service under the supervision of the Selective Service System.  Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.  Clemency Discharges issued pursuant to PP 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs (VA).  The ADRB adapted the policy that a Clemency Discharge would be considered by a board in its deliberations but that the discharge per se did not automatically require relief be granted.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded based on his overall record of service, and because he qualified for a clemency discharge under PP 4313 were carefully considered.  However, the evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  


2.  Further, his discharge accurately reflects his overall record of undistinguished service.  His record confirms he served in the RVN.  However, notwithstanding this RVN service, his record documents no acts of valor or significant achievement.  His record does reveal an extensive disciplinary record that includes his accrual of 1,040 days of time lost due to AWOL, and the clemency discharge he received pursuant to PP 4313 did not impact the underlying UD he received.  As a result, it is concluded his discharge accurately reflects his overall record of service, and his service is not sufficiently meritorious to support an upgrade of his discharge.

3.  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

___x____  ___x_____  ___x ___  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.



      _________x____________
      	CHAIRPERSON	
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006073



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ABCMR Record of Proceedings (cont)                                         AR20080006073


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