IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090013224 


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 upgrade of his undesirable discharge to a fully honorable discharge.

2.  The applicant states that during his initial enlistment of service he served honorably.  He goes on to state that his mother had a heart attack and he needed to go on emergency leave to see her; however, he had a spiteful noncommissioned officer in charge (NCOIC) who told him that he could not go and continued to make his life a living hell.  He continues by stating that he reported his NCOIC to his seniors and he was told that nothing could be done about it.  The NCOIC continued his abuse, lied to him by telling him that he was related to him, and he finally reached a breaking point where he could not take it.  He also states that his discharge should be corrected to correct an injustice of abuse received at Fort Benning, GA.  Additionally, he obtained a copy of a letter from his official records, dated 25 November 1974, that was apparently sent to him offering him clemency; however, he never received the letter and he was not given the chance to present his case.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty); a copy of a Presidential Proclamation Letter, dated 25 November 1974, a copy of his discharge orders, two pages from his discharge request; and item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) 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 was born on 9 June 1950 and he enlisted in the Regular Army (RA) in Atlanta, GA on 12 February 1971.  He completed basic combat and advanced individual training at Fort Jackson, SC and he was transferred to Fort Benning to undergo airborne training on 28 May 1971.

3.  The applicant went absent without leave (AWOL) from 17 June 1971 to 22 July 1971.  He again departed AWOL on 25 July 1971 and at least two letters were dispatched to his mother requesting that she advise the applicant to surrender himself.  He remained absent until he surrendered to military authorities at Fort Gordon, GA on 7 January 1976 and charges were preferred against him for his AWOL offenses.

4.  An investigating officer was appointed to investigate the charges against the applicant.  He indicated that the applicant verbally relayed to him that he departed Fort Benning after his request for a hardship discharge was disapproved.  He further indicated that his father had a back operation 7 years prior and he had not worked since.  His mother had numerous heart attacks and she was currently hospitalized and that he was currently the only assistance they received outside of a $180.00 Social Security check they received.  He went on to state that his parents had come to Fort Benning and discussed their circumstances with the commander.  Subsequently, his commander advised him that he would not be getting a hardship discharge, so he went AWOL to assist his parents.  He also stated that the only correspondence he received from the military was a letter regarding amnesty, which he did not understand, so he took no action.

5.  On 8 January 1976, after consulting with counsel, the applicant voluntarily submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further elected to submit a statement in his own behalf in which he stated that he did not want to stay in the Army, that he did not want further rehabilitation and that he was willing to accept an undesirable discharge.

6.  The chain of command recommended disapproval of his request and recommended that he be tried by court-martial; however, the convening authority (a major general) approved his request on 17 February 1976 and directed that he be furnished an Undesirable Discharge Certificate.

7.  Accordingly, he was discharged with an undesirable discharge, characterized as under other than honorable conditions on 18 March 1976, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 months and 25 days of total active service and he had 1,662 days of lost time due to AWOL.

8.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  A review of the available records failed to reveal any indication that the applicant had formally applied for a hardship discharge before going AWOL.  However, there is a copy of a commander’s inquiry in which the commander indicates that there was no apparent reason for the applicant to go AWOL.  Additionally, the Presidential Proclamation letter was addressed to his parent’s address, which was his address of record at the time.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

11.  Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals.  These groups were fugitives from justice who were draft evaders; members of the Armed Forces who were in an unauthorized absence status; and prior members of the Armed Forces who had been discharged with a punitive discharge for violations of Articles 85 (Desertion),
86 (AWOL), or 87 (Missing Movement) of the Uniform Code of Military Justice (UCMJ).  The last group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military, and members of the Reserve components) who would make a determination regarding the performance of alternate service.  That board was authorized to award a Clemency Discharge without the performance of alternate service (excusal from alternate service).  The dates of eligibility for consideration under this proclamation for those already discharged from the military service were 4 August 1964 to 28 March 1973, inclusive.  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, issued neither under “honorable conditions” nor under “other than honorable conditions.”  It is to be considered as ranking between an undesirable discharge and a general discharge.  A Clemency Discharge does not affect the underlying discharge and does not entitle the individual to any benefits administered by the VA.  While there is no change in benefit status per se, a recipient may apply to the VA for benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s overall record of service and the serious nature of the charges against him at the time simply does not rise to the level of a discharge under honorable conditions.

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

5.  The applicant’s contention that he was not afforded the opportunity to be considered under Presidential Proclamation 4313 has been noted and found to lack merit.  The letter was addressed to his address of record and he noted at the time of his return that he had received the notification and did not take any action on the letter.

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)                                         AR20090013224



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ABCMR Record of Proceedings (cont)                                         AR20090013224



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