DOCKET NUMBER: AR20090005367
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 undesirable discharge be upgraded to an honorable discharge.
2. The applicant does make any additional statement with his application.
3. The applicant provides his DD Form 214 (Report of Separation from Active Duty) in support of his request.
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 applicants 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 applicants 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 that he was inducted into the Army of the United States and entered active duty on 4 February 1969.
3. On 8 January 1970, the applicant was convicted by a summary court-martial for being absent without leave (AWOL) from 5 July to 7 November 1969 and from 29 November to 16 December 1969.
4. On 16 October 1974, the applicant was issued an undesirable discharge for the good of the service by reason of a willful and persistent unauthorized absence pursuant to Presidential Proclamation 4313. His DD Form 214 shows that he had 6 months and 18 days of creditable service and a total of 1,877 days lost time.
5. On 28 February 1977, the applicant was issued a DD Form 1953A (Clemency Discharge) based on his successful completion of alternate service.
6. 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 restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL- related incidents between August 1964 and March 1973. Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights. However, 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.
7. Army Regulation 635-200, 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
8. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant had been convicted by a court-martial and had a total of 1,877 days lost time.
2. Such serious misconduct certainly warranted an undesirable discharge.
3. While it is commendable that the applicant successfully served alternate service, a Clemency Discharge does not change the underlying undesirable discharge.
4. In view of the foregoing, there is no basis for granting the applicant's requested relief.
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) AR20090005367
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