IN THE CASE OF:	  

		BOARD DATE:	       14 JULY 2009

		DOCKET NUMBER:  AR20090001857 


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 that his clemency discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he completed the required program and was awarded a certificate on 17 December 1975 for completion of his reconciliation service by Presidential Proclamation Number 4313. 

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) with a separation date of 30 October 1974; certificate of completion of Reconciliation Service prescribed by Presidential Proclamation Number 4313; DD Form 215 (Correction to DD Form 214) dated 11 December 1975; a Department of Veterans Affairs (VA) letter dated 27 March 2006; and a second VA letter dated 1 November 2008.

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 was inducted into the Army of the United States on 23 January 1967 for a 2-year period.  After completion of basic and advanced individual training, he was awarded military occupational specialty 63B (Wheeled Vehicle Repairman).  

3.  He was assigned to Headquarters and Headquarters Detachment, 43rd Signal Battalion (Support) and stationed in the Republic of Vietnam.  The applicant served with the 43rd Signal Battalion from 11 April 1968 to                  18 November 1968.  

4.  On 22 January 1969, the applicant was honorably released from active duty upon his expiration of his term of service and transferred to the U.S. Army Reserve Control Group (Annual Training).  He was issued a DD Form 214 which shows that he completed 2 years of net active service during his first enlistment period.  His rank at the time of his release was specialist (temporary)/pay grade E-4. 

5.  On 22 April 1969, after a 3-month break in service, the applicant enlisted in the Regular Army for a 6-year period of service.  The applicant entered active duty in the rank and grade of private first class/pay grade E-3.  Records show the applicant was assigned to the 561st Maintenance Company at Fort Lee, Virginia.

6.  On 10 July 1969, the applicant was convicted by a special court-martial of being absent without leave (AWOL) during the period 2 June 1969 through on or about 26 June 1969.  His sentence consisted of confinement to hard labor for   45 days and forfeiture of $75.00 per month for two months. 

7.  The applicant was reported as AWOL on 2 September 1969 and then dropped from the rolls on 1 October 1969 as a deserter. 

8.  On 16 October 1974, the applicant received a letter from a commander stating that the applicant had requested to participate in the Presidential Proclamation Number 4313 of 16 September 1974 program.  The letter's guidance stated, in effect, that the applicant would be given an opportunity to request a discharge for the good of the service, reaffirm his allegiance to the country, and pledge to perform alternative service for a period not to exceed 24 months.  The applicant was advised to report to Fort Benjamin Harrison, Indiana on or about 29 October 1974.

9.  On 22 October 1974, the applicant returned to military control from an AWOL status at Headquarters, Fort Hamilton, New York.  He was reassigned to the U.S. Army Clemency Center at Fort Benjamin Harrison, Indiana with a report date of 28 October 1974.

10.  On 30 October 1974, the applicant voluntarily requested a discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313 of 16 September 1974.  In the applicant's request, he stated he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he would be ineligible for many or all benefits administered by the VA under both state and Federal laws, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

11.  He further acknowledged that he would report to his State Director of Selective Service to coordinate his alternative service work program and that he understood that upon satisfactory completion of an alternative service program, he would receive a Clemency Discharge Certificate.  However, such certificate would not alter his ineligibility for any benefits predicated upon his military service.  

12.  On 30 October 1974, the applicant completed a reaffirmation of allegiance and a pledge to complete alternative service.  He acknowledged that on or about September 1970, he voluntarily absented himself from his military unit without being properly authorized, which was in contravention of the oath taken upon entering the Nation's military service.  He recognized that his obligations as a citizen remained unfilled, and agreed to serve in an alternative service prescribed for him faithfully for a 12-month period.

13.  On 30 October 1974, the applicant was discharged pursuant to Presidential Proclamation Number 4313 for the good of the service by reason of willful and persistent unauthorized absence.  His characterization of service was under other than honorable conditions.  Item 27 (Remarks) of the DD Form 214 shows that the applicant had 1,954 days of time lost before his normal expiration of term of service. 

14.  On 11 December 1975, records show the applicant satisfactorily completed the 12 months of alternative service in the Reconciliation Service Program. 

15.  On 11 December 1975, the applicant was issued a DD Form 215 that shows he received a Clemency Discharge in recognition of his satisfactory completion of alternative service pursuant to Presidential Proclamation Number 4313.

16.  On 8 December 1976, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

17.  In support of his application, the applicant provided two letters from the VA.  The first letter, dated 27 March 2006, informed the applicant that his period of service from 23 January 1967 to 22 January 1969 was under honorable conditions and he was entitled to receive VA benefits for service connected disabilities incurred during this period of service.  However, since the second period of service from 22 April 1969 to 30 October 1974 was under other than honorable conditions, the applicant was barred from receiving VA benefits for any disability or disabilities incurred or aggravated in the line of duty during this period of service.  The reason for this determination was benefits were not payable to a former service member discharged or released by reason of a discharge under other than honorable conditions issued as a result of a continuous AWOL period of at least 180 days.  The VA stated that military records show the applicant had 1,954 days of AWOL.  This letter concluded with acknowledging the applicant had received a clemency discharge, but that this discharge does not entitle or reinstate entitlement to benefits administered by the VA.

18.  The second letter from the VA, dated 1 November 2008, states in effect, that records show the applicant was stationed in the Republic of Vietnam during his military service and informed him of the VA disability compensation benefits that may be available to Veterans who served on the ground or inland waterways of Vietnam between 9 January 1962 and 7 May 1975.

19.  Presidential Proclamation 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 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 were to 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 VA.

20.  Army Regulation 635-200 sets forth the basic policy for 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.

21.  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 contends that his clemency discharge should be upgraded to an honorable discharge. 

2.  The applicant's record shows that he did not honorably complete his second enlistment period due to 1,954 days of lost time prior to his expiration of his term of service.  Under the provisions of the Presidential Proclamation Number 4313, of 16 September 1974, the applicant requested a discharge for the good of the service.  The applicant was afforded the opportunity to consult with defense counsel and to voluntarily, and in writing, request separation from the Army acknowledging that he would receive a discharge under other than honorable conditions and that he would voluntarily participate in an alternative service program for no more than 24 months. 

3.  The applicant was told his discharge would be changed to a Clemency Discharge if he performed alternative service.  He was not told his discharge would be upgraded to an honorable discharge.  The applicant performed alternative service and he was given a Clemency Discharge.  There is no error or injustice in this scenario.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.
Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

5.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's clemency discharge characterization of service.

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)                                         AR20090001857



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ABCMR Record of Proceedings (cont)                                         AR20090001857



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