IN THE CASE OF:	  

		BOARD DATE:	  28 May 2009

		DOCKET NUMBER:  AR20090002142 


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 an upgrade of his clemency discharge to an honorable discharge.

2.  The applicant states that he served in Vietnam under hostile fire and received awards/medals.

3.  The applicant states that he is a diabetic with health care needs.  He also states that he completed alternate service and applied for a clemency discharge. 

4.  The applicant provides Social Security Administration Notice of Decision documents; miscellaneous Department of Veterans Affairs (VA) documents; a  26 April 1976 letter notifying him of his clemency discharge; a 30 January 1975 letter; subject: Participation in the Program Established by Presidential Proclamation 4313, 16 September 1974; his DD Form 214 (Report of Separation from Active Duty); and a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) in support of this 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 records show he was inducted into the Army of the United States on 25 March 1970.  He then enlisted in the Regular Army on 31 March 1970 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of petroleum storage specialist.  He was promoted to pay grade E-4.

3.  On 10 September 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 1 to 9 September 1970.

4.  The applicant's DA Form 20 (Enlisted Qualification Record), item 31 (Foreign Service) shows the applicant served in the Republic of Vietnam during the period 17 September 1970 through 16 September 1971.
 
5.  The applicant's DD Form 214 shows he was awarded the Vietnam Service Medal, Republic of Vietnam Campaign Medal with 60 Device, Republic of Vietnam Gallantry Cross with Palm Unit Citation, National Defense Service Medal, Army Commendation Medal, and Sharpshooter Marksmanship Badge
(M-16).

6.  The applicant's available records concerning his AWOL status are incomplete.  However, an ADMINCEN Form 1966-5 (Reaffirmation of Allegiance and Pledge to Complete Alternate Service) shows he admitted to voluntarily absenting himself from his military unit without being properly authorized (absent without leave [AWOL]) in October 1971.  He was subsequently dropped from the rolls of the Army and would have been declared a deserter.  U.S. Army Administration Center and Fort Benjamin Harrison Special Orders Number 26, dated 4 February 1975, show he was returned to a present for duty status on 3 February 1975 after having been dropped from the rolls of his organization.

7.  ADMINCEN Form 1966-3 (Enlisted Statement - Request for Discharge for the Good of the Service), dated 5 February 1975 shows the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, 16 September 1974.  The applicant acknowledged that he understood that his absence was characterized as willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the UCMJ and could lead to the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will and that prior to completing the request he had been afforded the opportunity to consult with military counsel.  He acknowledged that he had been fully advised by counsel as to the nature of the offenses for which he may be tried and the maximum permissible punishment which may be imposed.  He acknowledged that he understood he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that he had been advised and understood the adverse nature of such a discharge and the possible consequences thereof.  He acknowledged that as a result of the issuance of such a discharge, he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the Veteran's Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged that within 15 days of receipt of the Undesirable Discharge Certificate that he must report to his State Director of Selective Service to arrange for performance of alternate service.  He further acknowledged he understood that satisfactory completion of such alternate service will be acknowledged by issuance of a Clemency Discharge Certificate.  He acknowledged, however, that such a certificate would not alter his eligibility for any benefits predicated upon his military service.

8.  Additional facts and circumstances concerning the applicant's discharge proceedings are not in the available records.  However, his DD Form 214 shows he was discharged on 5 February 1975, under the provisions of Presidential Proclamation 4313, dated 16 September 1974, under other than honorable conditions with an undesirable discharge.  His DD Form 214 also indicates he had 1 year, 6 months and 20 days of creditable service; 163 days of lost time before normal expiration of service; and 1403 days of lost time after his normal expiration of service.

9.  The applicant applied for and was accepted for 12 months of alternate service in the President's Clemency Program.  He received a certificate of completion of the prescribed Reconciliation Service dated 30 March 1976.

10.  The applicant's record contains a letter dated 26 April 1976 indicating the applicant had completed his alternate service pursuant to Presidential Proclamation 4313, dated 16 September 1974.  It shows that he was granted a clemency discharge pursuant to Presidential Proclamation 4313, dated             16 September 1974.  He was given a DD Form 215 to be attached to his DD Form 214, which added a statement in item 27, which read "DD Form 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313."

11.  The applicant was further advised that he could apply to the Army Discharge Review Board (ADRB) for review and possible change to his discharge.  There is no evidence that the applicant applied to the ADRB to upgrade his discharge.

12.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  
Alternate service was to be performed under the supervision of the Selective Service System.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service.  The military services issued the actual clemency discharges.  The clemency discharge is a neutral discharge, neither honorable nor less than honorable.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  While the applicant received several awards primarily due to his service in Vietnam, this service was not so redeeming as to outweigh his 9-day period of AWOL followed by approximately 52 months of unauthorized absence.  

3.  Under the provisions of Presidential Proclamation 4313, the applicant was required to serve up to 12 months of alternate service, which evidence shows he completed.  However, completing the requirements of the program provided for a Clemency Discharge, not an Honorable Discharge Certificate.

4.  The applicant was granted a clemency discharge under Presidential Proclamation 4313, which restored his civil rights but did not change the underlying discharge.  His clemency discharge, considered a "neutral" discharge, did not entitle him to any benefits administered by the VA and did not require the underlying discharge be upgraded in order to secure such benefits.

5.  The character of the applicant's discharge is commensurate with his overall record of military service, and there is no justification for upgrading his discharge.
6.  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 that requirement.

7.  The Board does not upgrade properly issued discharges solely to establish entitlement to benefits from other agencies.

8.  The applicant has not provided any compelling evidence or convincing argument to further mitigate his serious AWOL offenses.  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 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.



      ___________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)                                         AR20090002142



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ABCMR Record of Proceedings (cont)                                         AR20090002142



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