DOCKET NUMBER:  AR20090001529 


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 undesirable discharge (UD) be upgraded to a general, under honorable conditions, discharge.

2.  The applicant states, in effect, that his discharge should be upgraded based on the award of a clemency discharge, pursuant to Presidential Proclamation 4313, dated 16 September 1974.  It was his understanding that a clemency discharge would qualify him for Department of Veterans Affairs (VA) benefits and he recently discovered that this was not the case.  He also states that authorities told him that he had received a clemency discharge in the late 70's, but only recently received written confirmation of this discharge.  He delayed his request for an upgrade because he understood that the VA would consider the facts concerning his character of service when he filed a claim for service-connected disability compensation.  He filed a compensation claim with the VA in November 2004 and it was denied because of the character of service for his second period of service which was under other than honorable conditions.    

3.  In support of his application, the applicant provides copies of his 1963 and 1972 DD Forms 214 (Armed Forces of the United States Report or Transfer or Discharge), a letter advising him of award of a clemency discharge pursuant to Presidential Proclamation 4313 and a DD Form 215 (Correction to DD Form 214), his Compensation and Pension Exam Report, a 2 May 2005 letter from the VA and with a VA Rating Decision, and a 14 May 2005 letter from the VA.



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 records show he was inducted into the Army of the United States, in pay grade E-1, on 9 November 1961, for 2 years.  He completed basic and advanced training and was assigned military occupational specialty (MOS) 120.07, Pioneer.  

3.  The applicant was separated under honorable conditions from active duty, in pay grade E-3, on 8 November 1963, at the expiration of his term of service.  He was transferred to the United States Army Reserve Control Group (Annual Training).

4.  The applicant enlisted in the Regular Army, in pay grade E-2, on 5 April 1967, for 5 years.  He completed basic and advanced individual training and was assigned MOS 63A, Mechanical Maintenance Apprentice.  

5.  On 5 October 1967, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from 5 September 1967 to 18 September 1967.  His punishment included a forfeiture of $50.00 pay per month for one month and correctional custody for 30 days.

6.  On 30 November 1967, the applicant was convicted by summary court-martial of two specifications of absenting himself from his unit from 30 to 31 October 1967 and from 31 October to 7 November 1967.  He was sentenced to 30 days restriction to the company area and a forfeiture of $25.00 pay per month for one month.  The sentence was adjudged on 30 November 1967 and approved on 1 December 1967.

7.  On 2 April 1968, the applicant was convicted by special court-martial of one specification of absenting himself from his unit from 4 January 1968 to 15 March 1968.  He was sentenced to a reduction to pay grade E-1 and confinement at hard labor for six months.  The sentence was adjudged on 2 April 1968.  

8.  On 3 April 1968, the Department of the Army, Headquarters, Special Processing Battalion (Provisional), Fort Riley, Kansas, approved the sentence and suspended the portion thereof adjudging confinement at hard labor for six months, at which time unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

9.  The applicant was reduced to pay grade E-1 on 3 April 1968.  

10.  On 8 May 1969, the applicant accepted non-judicial punishment under Article 15, UCMJ, for failing to go to his appointed place of duty on 7 May 1969.  His punishment included a forfeiture of $10.00 pay per month for one month and 7 days extra duty.

11.  On 16 June 1969, the applicant accepted non-judicial punishment under Article 15, UCMJ, for absenting himself from his place of duty on 15 June 1969.  His punishment included a forfeiture of $40.00 pay per month for one month and 14 days restriction and extra duty.

12.  A Commander's Inquiry memorandum, dated 20 November 1969, stated the applicant was assigned to Company D, 169th Support Battalion (Maintenance), 5th Infantry Division, on 24 September 1969 and was dropped from the rolls of the organization as a deserter on 19 November 1969.

13.  In a statement, dated 15 February 1972, the applicant acknowledged the approval of his request for discharge for the good of the service.

14.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contained a copy of his DD Form 214 which shows that he was discharged on 28 February 1972, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10.  His character of service was under other than honorable conditions and he was furnished an UD Certificate. He was credited with 2 years, 4 months, and 10 days total active service and 923 days time lost due to AWOL (absent without leave) and military confinement. 

15.  The applicant's records contain and he submits a copy of a letter, dated 13 April 1976, wherein he was advised that he was being awarded a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974.  The letter also advised that he was being provided a Clemency Discharge (DD Form 1953A) and a DD Form 215 amending his DD Form 214.  He was also advised that he could apply to the Army Discharge Review Board (ADRB) for review and possible change to his discharge.  

16.  The applicant was issued a DD Form 215, dated 28 February 1976, indicating the issuance of a DD Form 1953A, Clemency Discharge, pursuant to Presidential Proclamation 4313.

17.  The applicant also submits a copy of his Compensation and Pension Exam Report, dated 9 February 2005, that shows he underwent a medical examination for a determination of diabetes mellitus for service-connected disability.

18.  The applicant further submits a copy of a letter from the VA, dated 8 May 2005.  The letter advised the applicant that a review of his records concerning his discharge determined that his military service for the period 5 April 1967 to 28 February 1972 did not entitle him to VA benefits.  The attached VA Rating Decision, dated 4 May 2005, shows he was denied service-connection for diabetes mellitus, type II, and hypertension.  The decision also stated that the applicant served in the Army from 9 November 1961 to 8 November 1963 and from 5 April 1967 to 28 February 1972.  His second period of service could not be used as it was administratively decided the period was dishonorable for VA purposes.  The letter also advised that his service medical records from 9 November 1961 through 8 November 1963 did not show a diagnosis or treatment for diabetes mellitus in service and that he did have a current diagnosis of diabetes.  This condition did not happen in military service nor was it aggravated or caused by service.  His service medical records from 9 November 1961 through 8 November 1963 did not support hypertension in service and there were no medical records supporting a diagnosis of hypertension within a year of discharge. 

19.  The applicant also submits a copy of a letter from the VA, dated 14 May 2005, wherein he was advised that it was determined that the conditions of diabetes mellitus and hypertension were not related to his military service; therefore, service connection could not be granted.

20.  There is no evidence the applicant applied for an upgrade of his discharge to the Department of Defense (DOD) Special Discharge Review Program (SDRP) or the ADRB within its 15-year statute of limitations for an upgrade of his discharge.

21.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

22.  Army Regulation 635-200, paragraph 3-7b, also 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.

23.  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 work program specifically designated 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 an UD. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  A clemency discharge did not restore veterans benefit; rather, it restored federal and, in most instances state civil rights which might have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service, the original characterization of service, undesirable, would be retained.

24.  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 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 UD under Presidential Proclamation 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 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 up 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 Presidential Proclamation 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 VA.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to a general, under honorable conditions, discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.  

2.  The applicant’s contentions have been noted; however, they do not sufficiently support his request and do not serve as mitigation in his case.  Presidential Proclamation 4313 provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  The evidence shows the applicant's award of a clemency discharge did not change his underlying discharge and did not entitle him to any benefits administered by the VA.  The participation and successful completion of the Clemency Program did not provide for an upgrade of an individual’s discharge.  It simply restored rights that were otherwise lost, had individuals not participated.

3.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review.  The applicant’s record contains a properly constituted DD Form 214 which was authenticated by him.  This document identifies the reason and authority for the applicant's discharge and the characterization of his service.

4.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears the discharge proceedings were conducted in accordance with law regulations in effect at the time, with no indication of procedural errors, which would tend to jeopardize the applicant's rights. 
5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090001529



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ABCMR Record of Proceedings (cont)                                         AR20090001529


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