IN THE CASE OF:	  

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090016234 


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, an upgrade of the character of service of his discharge.

2.  The applicant states, in effect, he received a Clemency Discharge in 1976; however, he is not sure if he submitted a request to upgrade his discharge.  He also states:

	a.  He does not remember anything about a 15-year deadline for submitting a request for upgrade of his discharge; however, he is sure he mailed the form.  He adds that he never thought too much about it because he assumed it was processed.

	b.  He learned that his discharge had not been upgraded when he filed for government benefits.

3.  The applicant provides, in support of his application, copies of documents relating to his court-martial and clemency 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.  The applicant was inducted and entered active duty in the U.S. Army for a period of 2 years on 11 December 1967.  Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably discharged on 9 September 1968 for the purpose of his immediate enlistment.  At the time he had completed
8 months and 29 days of net active service this period.

4.  The applicant enlisted in the Regular Army for a period of 6 years on
10 September 1968.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 31 (Foreign Service) that he served in the Republic of Korea (ROK) from 22 April through 18 October 1968; and

	b.  item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) that he was absent without leave (AWOL) for 54 days from 18 October to 10 December 1968; AWOL for 460 days from 21 December 1968 to 25 March 1970; confined for
1 day on 26 March 1970; and confined for 159 days from 4 June to 9 November 1970.

6.  At a general court-martial in June 1970, the applicant pled guilty to being AWOL from 18 October to 11 December 1968 and also from 21 December 1968 to 26 March 1970.  The applicant was found guilty of the charge and both specifications.  He was sentenced to be discharged with a bad conduct discharge, to forfeit $50.00 pay for 10 months, and to be confined at hard labor for 10 months (No previous convictions considered).  On 23 July 1970, the convening authority approved the sentence, directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review, and that the applicant be confined pending completion of the appellate review.


7.  On 9 September 1970, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved.  On 20 October 1970, the provisions of Article 71(c) having been complied with the bad conduct discharge was ordered executed.

8.  A DD Form 214 shows the applicant was discharged on 9 November 1970 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1b, with Separation Program Number (SPN) 292.  At the time of his discharge the applicant had completed 3 months and 26 days of net active service during the period of service under review.  He had a total of 674 days of time lost.  This DD Form 214:

   a.  Item 13a (Character of Service) shows the entry "Under Conditions Other Than Honorable." 

	b.  Item 13b (Type of Certificate Issued) shows the entry "DD Form 259A [Bad Conduct Discharge Certificate]."

9.  On 1 November 1975, the Pardon Attorney, United States Department of Justice, Office of the Pardon Attorney, Washington, DC, notified the applicant that President Ford granted him clemency for his absence offense and a Clemency Discharge to replace his less than honorable discharge.  This document also advised the applicant that the Clemency Discharge replaced his punitive discharge and should be considered a neutral discharge, neither honorable nor less than honorable.

10.  A DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty), dated 26 January 1976, shows item 30 (Remarks) of the applicant's (9 November 1970) DD Form 214 was corrected by adding "DD 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No. 4313."

11.  Headquarters, Office of The Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, letter, dated 26 February 1976, shows the applicant was informed of his Clemency Discharge and provided copies of his DD Form 1953A and DD Form 215.

12.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.
13.  Presidential Proclamation 4313 was issued on 16 September 1974.  It provided, in pertinent part, that individuals absent from the military for a long period of time, primarily in connection with the war in the Republic of Vietnam, could avail themselves of a clemency program.  If they returned to military control, swore allegiance again to the United States and agreed to perform a period of alternate service under the supervision of the Selective Service, a 
Clemency Discharge would be given.  However, the individual would normally receive an undesirable discharge from the military service.  Service discharge review boards and correction boards are not empowered to change the Clemency Discharge, but may review the underlying circumstances of the discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:
   
	a.  Paragraph 1-3 (Definitions) states that the character of service for an administrative separation provides for a determination reflecting a member's military behavior and performance of duty during a specific period of service.  The three characters are:  Honorable, Under Honorable Conditions (General Discharge), and Under Other Than Honorable Conditions.

   b.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.

   d.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

   e.  Chapter 11 (Dishonorable and Bad Conduct Discharge) provides that a member will be given a bad conduct discharge [DD Form 259A] pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his clemency discharge should be upgraded because he believes he requested an upgrade within the statutory period.  But, he learned his discharge had not been upgraded when he filed for government benefits.  However, he provides insufficient evidence in support of his contention.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  After a thorough and comprehensive review of the underlying circumstances of the applicant's discharge and his military service record, it is concluded that the applicant's punitive discharge was appropriate.

5.  Clemency Discharges issued pursuant to Presidential Proclamation 4313 did not entitle the individual to any benefits administered by the Department of Veterans Affairs.  The pardon issued by Presidential Proclamation restored the applicant any rights or privileges forfeited by reason of his conviction or bad conduct discharge.

6.  The ABCMR does not upgrade a former Soldier's discharge solely to enhance eligibility for veterans' benefits.

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)                                         AR20090016234



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ABCMR Record of Proceedings (cont)                                         AR20090016234



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