IN THE CASE OF:	  

		BOARD DATE:	       27 AUGUST 2009

		DOCKET NUMBER:  AR20090005492 


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 a general discharge under honorable conditions.

2.  The applicant states, in effect, that he was granted a clemency discharge, but he has yet to see it reflected on a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He contends that he has been a good citizen since his discharge.  His court-martial convictions were for minor offenses and he was also discharged for minor offenses.  He also states that he was young and immature when he was drafted into the Army.  

3.  The applicant provides, in support of his application, copies of his DD Form 214, DD Form 215 (Correction to DD Form 214), DD Form 1953A (Clemency Discharge Certificate), Presidential Pardon, birth certificate, DA Form 20B (Record of Court-Martial Convictions) and the 1st and 2nd endorsements of his discharge packet. 

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.  On 14 March 1969, the applicant was inducted into the Army of the United States for 2 years.  His DD Form 47 (Record of Induction) indicates his year of birth as 1949.  His Standard Form (SF) 89 (Report of Medical History) shows his date of birth as 7 April 1949, as does his DD Form 398 (Statement of Personal History), DA Form 428 (Application for Identification Card), DA Form 1315 (Reenlistment Data Card), and DA Form 669 (General Educational Development Individual Record).  These documents indicate that the applicant was 18 years and 9 months of age at the time of his entry on active duty.

3.  The applicant submits a copy of his birth certificate indicating his date of birth is 7 April 1950.  Based on this document, he was 17 years and 9 months of age at the time of entry on active duty.

4.  The applicant completed his initial training and was awarded military occupational specialty (MOS) 91A (Medical Corpsman).   

5.  On 16 April 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for failure to report to his place of duty.  The punishment included a forfeiture of $23.00 pay and 
14 days of restriction.

6.  On 1 July 1969, the applicant was convicted by summary court-martial of being absent without leave (AWOL) on 24 June 1969.  His sentence consisted of a forfeiture of $50.00 pay and 45 days of hard labor.

7.  On 14 November 1969, the applicant received NJP for being absent from morning formation.  His punishment included a forfeiture of $28.00 pay and
14 days of restriction.

8.  On 13 March 1970, the applicant was assigned duty as an aidman with the 4th Battalion, 21st Infantry Regiment, in the Republic of Vietnam.

9.  On 9 June 1970, the applicant was convicted by a special court-martial of wrongful appropriation of an M-16 rifle, being in an off-limits area, and assaulting two noncommissioned officers with his open hand.  His sentence consisted of reduction to pay grade E-1, a forfeiture of $88.00 pay per month for 3 months, and confinement at hard labor for 3 months.  He served 71 days in confinement.
10.  On 18 September 1970, the applicant received NJP for being absent from his place of duty and for missing movement with his unit.  The punishment included a forfeiture of $50.00 pay per month for 2 months and 30 days of extra duty and restriction.

11.  On or about 18 September 1970, the applicant underwent a psychiatric evaluation.  He was referred by his unit commander in connection with either a rehabilitative transfer or separation under the provisions of Army Regulation 
635-212 for unfitness.   The psychiatrist found the applicant had no disqualifying defects to warrant disposition through medical channels.  The applicant met retention standards, he was mentally responsible, able to distinguish right from wrong and to adhere to the right.  He was also diagnosed as having a chronic severe passive aggressive personality.

12.  On 21 September 1970, the applicant was notified of the commander's intention to separate him from the military under the provisions of Army Regulation 635-212 for unfitness.  

13.  On 23 September 1970, the applicant received legal counseling and waived consideration of his case by a board of officers.  He waived a personal appearance and he waived legal representation by counsel.  He submitted a statement in his own behalf essentially stating that he was not fit for military duty because his stomach hurt and there were many things he could not do.

14.  On 15 October 1970, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-212 for unfitness.  Further rehabilitative efforts were considered useless.  

15.  On 25 October 1970, the appropriate authority approved the separation action and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).  On 4 November 1970, the applicant was discharged accordingly.  He had completed 1 year, 5 months, and 8 days of creditable active duty service and he had 71 days of lost time due to being in confinement.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability .  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An Undesirable Discharge Certificate was normally considered appropriate.

17.  On 22 October 1975, the applicant was granted executive clemency (a full pardon) under the provisions of Presidential Proclamation 4313 on 16 September 1974.  

18.  On 10 December 1975, a DD Form 215 was issued.  It corrected the applicant's DD Form 214 by showing he was discharged on 4 November 1970 and adding to Item 30 (Remarks): "DD Form 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No. 4313."  

19.  On 21 January 1976, the Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, Missouri, wrote a letter to the applicant informing him of his clemency discharge and stating that he could apply to the Army Discharge Review Board (ADRB) for a review and possible upgrade of his undesirable discharge.

20.  On 15 April 1980, the applicant applied to the ADRB for an upgrade of his discharge.  On 22 July 1981, the ADRB determined that the applicant's discharge was both proper and equitable and denied his request for an upgrade.

21. 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.  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. 

22.  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 member’s 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.

23.  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.

24.  Under the UCMJ, the maximum punishment allowed for missing movement or for assaulting a noncommissioned officer is a punitive discharge and 1 year of confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was granted a clemency discharge; however, he has yet to see it reflected on his DD Form 214.  He contends that he has been a good citizen since his discharge.  He contends that his court-martial convictions were for minor offenses and that he was also discharged for minor offenses.  Additionally, he contends he was young and immature when he was drafted into the Army.  

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  

3.  The evidence of record includes the applicant’s DD Form 214 and a DD Form 215 that he was issued that clearly reflects the issuance of a clemency discharge.  There are no provisions for the issuance of a new DD Form 214.

4.  The evidence of record shows that the applicant served on active duty using a date of birth of 7 April 1949.  His birth certificate reports that he was actually born a year later.  However, there is no convincing evidence that shows his age or youth had any bearing on his repeated misconduct.  He satisfactorily completed his initial training and was awarded an MOS.  This satisfactory performance demonstrated he had the capacity to serve honorably.  Further, he was no younger than other Soldiers who successfully completed their military service obligations.

5.  The applicant's contention that all of his misconduct was for minor offenses is not accurate.  He was punished for missing movement and for striking  noncommissioned officers.  These are not minor offenses as evidenced by the punishment authorized for such misconduct.

6.  Based on the applicant’s record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory. Therefore, he is not entitled to an upgrade of his undesirable discharge.
7.  The applicant’s unsubstantiated claim of good post-service conduct is not sufficient to mitigate his repeated and excessive acts of indiscipline during his military service.  

8.  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.

9.  In view of the above, the applicant's request for an upgrade of his discharge should be denied.

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)                                         AR20090005492



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ABCMR Record of Proceedings (cont)                                         AR20090005492



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