IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090014019 


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 bad conduct discharge be upgraded to honorable.

2.  The applicant states he thought receipt of a clemency discharge meant his bad conduct discharge had been upgraded.  In July 2009, he discovered this was not true. 

3.  The applicant provides, in support of his application, copies of his Clemency Discharge, DD Form 215 (Correction to DD Form 214), and correspondence from the Office of the Adjutant General, United States Army Reserve, St. Louis, Missouri, providing him instructions about applying for an upgrade of his discharge.

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 15 August 1969, the applicant was inducted into the Army of the United States for a period of 2 years.  He completed his initial training and was awarded military occupational specialty 13A (Field Artillery).  

3.  On 11 January 1970, the applicant was advanced to private first class, pay grade E-3.

4.  On 12 January 1970, the applicant was assigned to C Battery, 2nd Battalion, 11th Artillery Brigade, 101st Airborne Division, in the Republic of Vietnam.  

5.  On 19 February 1970, the applicant was reassigned as a patient, to the 106th General Hospital in Japan.  On 9 March 1970, he was further assigned to the Medical Holding Company at Fort Gordon, Georgia.

6.  On 12 January 1971, the applicant was assigned to A Battery, 4th Battalion, 39th Artillery Brigade, located at Fort Bragg, North Carolina.

7.  On 2 February 1971, the applicant was found guilty by a special court-martial of being absent without leave (AWOL) from 24 April 1970 to 12 January 1971.  He was sentenced to confinement at hard labor for 4 months (2 months suspended for 4 months), and reduced to pay grade E-1.  He was confined for 
32 days.

8.  On 5 March 1971, the applicant was returned to his previous unit of assignment.

9.  On 13 February 1973, the applicant was found guilty by a special court-martial of being AWOL during the period from on or about 13 September 1971 to 
20 December 1972.  He was sentenced to confinement at hard labor for 
4 months, a forfeiture of $204 pay for 4 months, and a bad conduct discharge.  He had 295 days of lost time prior to his normal expiration term of service (ETS) date and 582 days of lost time subsequent to his normal ETS date.  The sentence was approved on 4 April 1973.  The Record of Trial was not available for review.

10.  Accordingly, the applicant was discharged on 14 May 1973, under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11-2, with a bad conduct discharge.  He had completed 1 year, 4 months, and 3 days of creditable active service.  
11.  On 19 December 1975, the applicant was issued a DD Form 1953A (Clemency Discharge from the Armed Forces of the United States of America).  This certificate was issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation Number 4313, dated 
16 September 1974.

12.  On 19 December 1975, the applicant was issued a DD Form 215, correcting his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to add a remark stating that he was issued a DD Form 1953A.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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 less than an honorable discharge for AWOL related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, not to exceed 24 months, 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 was granted in lieu of the punitive discharge.  The clemency discharge 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.

15.  The Clemency Discharge is a neutral discharge, issued neither under "honorable conditions" nor under "other than honorable conditions."  The Clemency Discharge is an expression by the Chief Executive that the stigma of a bad record has been removed and that the bearer of a Clemency Discharge should no longer be discriminated against in future considerations.  The Clemency Discharge is substituted for the undesirable punitive discharge.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to honorable.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted.  Subsequently, the applicant received a Clemency Discharge as a substitute for his bad conduct discharge.

3.  Under the provisions of Presidential Proclamation 4313, the applicant was required to serve up to 24 months of alternate service.  His Clemency Discharge is convincing evidence that he completed this requirement.  However, completing the requirements of the program did not provide for an automatic issuance of an Honorable Discharge Certificate. 

4.  The applicant has not provided any compelling evidence or convincing argument to substantiate upgrading his discharge.  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 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)                                         AR20090014019



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ABCMR Record of Proceedings (cont)                                         AR20090014019



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