IN THE CASE OF:	  

		BOARD DATE:	       12 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013771 


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, that his clemency discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he was granted a full and unconditional pardon by President Ford on 12 November 1975, which was considered a neutral discharge.  He would like to have his discharge upgraded to a general discharge so that he can apply for medical benefits. 

3.  The applicant provides a copy of his separation document (DD Form 214); DD Form 215 (Correction to DD Form 214); a letter from the Department of Veterans Affairs; DD Form 258A (Undesirable Discharge Certificate); a letter from the United States Department of Justice, Office of the Pardon Attorney, with a Full Pardon Certificate; and a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

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 military personnel record shows that he enlisted in the Regular Army on 17 June 1967.  He completed the necessary training and was awarded the military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist).

3.  On 10 May 1968, the applicant was convicted by a Special Court-Martial for being absent without leave (AWOL) during the period 1 April 1968 to 28 April 1968.  His sentence consisted of 6 months in confinement (suspended for  
6 months) and a forfeiture of $85.00 per month for 6 months.  

4.  Special Court-Martial Order Number 14, dated 19 June 1968, shows that the suspended execution of the approved sentence to be confined for 6 months was vacated and the unexecuted portion of the sentence was duly executed.

5.  On 25 July 1968, the applicant was psychiatrically cleared for any administrative action deemed appropriate by his commander.

6.  On 30 July 1968, the applicant was informed by his commander of his intent to recommend a discharge for unfitness under the provisions of Army Regulation 635-212, his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf and his right to be represented by counsel at a hearing.  The commander also explained the applicant's rights in conjunction with his recommendation and the effect of waiving those rights.

7.  On 1 August 1968, the applicant acknowledged that he understood 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

8.  On 12 August 1968, the separation authority approved the applicant's commander's recommendation and directed that the applicant be issued an Undesirable Discharge Certificate.  On 19 August 1968, the applicant was discharged.  He completed a total of 1 year and 6 days of Net Service This Period and he had 57 days of lost time.

9.  On 12 November 1975, the applicant was issued a clemency discharge pursuant to Presidential Proclamation Number 4313. 

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

11.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers who voluntarily entered into and completed an alternate public works program specifically designed for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge, for the good of the service, with the understanding that they would receive a discharge UOTH conditions.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  A clemency discharge does not restore veterans benefits; rather, it restores federal and, in most instances, state civil rights which were previously denied due the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service, the original characterization of service would be retained.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his clemency discharge should be upgraded to a general discharge so that he may apply for his medical benefits.

2.  The evidence shows that the applicant was convicted by a Special Court-Martial for being AWOL during the period 1 April 1968 to 28 April 1968.  He received an undesirable discharge for unfitness, which was upgraded to a clemency discharge with a full and unconditional pardon by President Ford on  
12 November 1975. 

3.  Although the applicant may have been granted a clemency discharge with a full and unconditional pardon, the clemency discharge does not mitigate the reason for his separation and character of service upon being discharged.

4.  Also, the ABCMR does not amend records solely for the purpose of establishing eligibility for veterans' benefits.  Therefore, he is not entitled to an upgrade to a general discharge.

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.




      _______ _   XXX_______   ___
               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)                                         AR20080013771



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ABCMR Record of Proceedings (cont)                                         AR20080013771



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