DOCKET NUMBER:  AR20090004267 


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 (GD).

2.  The applicant states, in effect, that he received a clemency discharge; however, he recently realized the character of his discharge was never changed. He also indicates that he is requesting that it be changed in order that he might receive benefits in the future from the Department of Veterans Affairs (VA).

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and DD Form 215 (Correction to the DD Form 214) 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 military record shows that he enlisted in the Regular Army (RA) for a period of 2 years and entered active duty on 25 September 1970.  

3.  The applicant’s record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated while he was still attending advanced individual training:  on 1 February 1971 for being absent without leave (AWOL) from 28 November 1970 to 29 December 1970 and on 11 May 1971 for failing to go at the time prescribed to his appointed place of duty.

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost Under Section 972, Title 10) that he accrued 254 days of time lost during a period of AWOL from 11 June 1971 through 29 February 1972.

5.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly constituted DD Form 214 that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), in lieu of trial by court-martial.

6.  The applicant’s DD Form 214 also confirms he was discharged on 6 April 1972 after completing a total of 9 months and 28 days of creditable active military service and accruing 254 days of time lost due to AWOL and that he received a UD.

7.  The applicant's military record contains a certificate that confirms he was granted a clemency discharge on 3 May 1976 upon completion of alternate service pursuant to Presidential Proclamation (PP) 4313.  It also includes a DD Form 215 which amended his DD Form 214 to include this information in item 30 (Remarks).

8.  On 21 May 1976, the applicant was advised that he had been awarded a clemency discharge pursuant to PP 4313.  He was further advised that he could apply to the Army Discharge Review Board (ADRB) for review and a possible change to his discharge.

9.  The applicant's record is void of any indication that he petitioned the ADRB for an upgrade of his discharge subsequent to the receipt of his clemency discharge or within that board's 15-year statute of limitations.

10.  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.  The separation authority may issue a GD or HD if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate.  At the time of the applicant's discharge, the issuance of a UD was authorized.

11.  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.

12.  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 a 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 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 contention that his discharge should be upgraded to a GD because he received a clemency discharge under PP 4313 was carefully considered.  However, this factor alone is not sufficiently mitigating to support granting the requested relief.

2.  The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s discharge.  This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial and that he received a UD.  This separation document carries with it a presumption of Government regularity in the separation process.

3.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  By regulation, a clemency discharge does not impact the underlying UD received by the applicant.  The UD the applicant received was normal and appropriate under the regulatory guidance in effect at the time and under the current regulatory guidance.

5.  In this case, the applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal a disciplinary history that includes his acceptance of NJP on two separate occasions and his accrual of 254 days of time lost due to AWOL.  As a result, although his completion of alternate service and the resulting clemency discharge he received are noteworthy, given the undistinguished nature of his overall record of service, it is not sufficiently mitigating to support an upgrade of his discharge at this late date.

6.  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)                                         AR20090004267



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ABCMR Record of Proceedings (cont)                                         AR20090004267



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