IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090017613 


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 (UD) be upgraded to an honorable or general discharge.

2.  The applicant states that he was administratively discharged for the same offenses he was court-martialed for or that were considered in the imposition of the court-martial sentence.  The court-martial did not direct a bad conduct discharge, although it had the authority to do so.  His command’s decision to discharge him for the same offenses was a violation of his right to a fair trial under the uniform code of military justice (UCMJ), as his command chose to discharge him after the court made the decision for his retention. 

3.  In support of his application, the applicant provides copies of his special court-martial orders and his DD Form 214 (Armed Forces of the United States Report of Transfer or 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's military records show he was inducted into the Army of the United States in pay grade E-1 on 17 July 1967, for 2 years.  He completed the training and was awarded military occupational specialty 13A (Field Artillery Basic).

3.  On 12 December 1967, he accepted punishment under Article 15, UCMJ, for failing to go to his appointed place of duty on 12 December 1967.  The punishment included a forfeiture of $15.00 pay for 1 month and 4 days of restriction and extra duty.

4.  He was advanced to pay grade E-3 on 13 February 1968, and this was the highest grade that he held during his period of service.  He served in Germany from 
13 January to 12 April 1968.

5.  His DA Form 20 (Enlisted Qualification Record), Item 42 (Remarks), contains the entry “14 June 1968, enlisted member held by civilian authorities for felonious assault/received 171 days confinement.”  At the time he was credited with being absent without leave (AWOL) from 14 June to 20 December 1968.

6.  On 6 March 1969, he was convicted by a special court-martial of three specifications of being AWOL from 7 January to 10 February 1969, 28 February to 3 March 1969, and from 3 to 4 March 1969.  He was sentenced to a forfeiture of $46.00 pay for 6 months and confinement at hard labor for 6 months.  The sentence was adjudged on 10 March 1969 and approved on 14 March 1969.

7.  He was reduced to pay grade E-1 on 14 March 1969.

8.  On 28 April 1969, the applicant’s unit commander recommended that the applicant be discharged under the provision of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), due to unfitness with a UD.  He cited the applicant’s records reflected five periods of AWOL, 212 days of lost time, and one special court-martial.  A medical examination showed he met the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).  The unit commander also stated the applicant’s continued course of discreditable conduct outweighed consideration of a discharge for character and behavior disorders only.  
9.  A Certificate of Psychiatric Evaluation, dated 30 April 1969, shows the applicant underwent a psychiatric examination.  The examining psychiatrist, a military medical doctor, diagnosed the applicant with an inadequate personality.  The examining psychiatrist stated the applicant had previously been recommended for separation under Army Regulation 635-212 because he could not adjust to the Army.  It was evident by his history and objective examination that the applicant’s degree of immaturity, instability, personality inadequacy, and dependency would seriously interfere with his adjustment in the military.  He also stated the applicant had no mental or physical defects warranting disposition through medical channels.  The examining psychiatrist recommended an administrative separation under the provisions of Army Regulation 635-212.

10.  On 6 May 1969, after consulting with counsel, the applicant acknowledged receipt of his proposed elimination from the service for unfitness.  He elected not to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged he understood the effects of a UD and acknowledged he understood that he could be ineligible for both State and Federal benefits as a veteran and could expect to encounter substantial prejudice in civilian life if a UD was issued.

11.  On 9 May 1969, the applicant's battalion commander recommended approval of the applicant's discharge by reason of unfitness with a UD Certificate.

12.  The applicant was discharged in pay grade E-1 on 20 May 1969, under the provisions of Army Regulation 635-212, with a UD.  He was credited with completing 1 year and 3 days of net active service.  He also had 305 days of lost time due to being AWOL and in confinement.

13.  His military records document no acts of valor or significant achievement.

14.  On 23 February 1976, he was informed that he had been awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1974.  He was also advised he could apply to the Army Discharge Review Board (ADRB) of review and possible change of his discharge.

15.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel who are found to be unfit or unsuitable for 
further military service.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  A UD was normally considered appropriate for individuals separated by reason of unfitness.

17.  Army Regulation 635-200 (Personnel Separations), then in effect, provided that an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

19.  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 public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  A clemency discharge did not restore veterans' benefits; rather, it restored Federal and in most instances, State civil rights which might have been denied due to the less than honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to an honorable or general discharge.  He has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief, he now seeks.

2.  The applicant’s contentions have been noted; however, the evidence of record shows that during his short period of service he was held in confinement by civilian authorities for felonious assault, convicted by a special court-martial of three periods of AWOL, received an Article 15, and credited with having 305 days of lost time due to being AWOL and in confinement.  His unit commander stated that it was in the best interest of the service that he be eliminated because of unfitness and that his discreditable conduct outweighed consideration for a character and behavior disorder separation.  He was psychiatrically cleared for an administrative separation under the provisions of Army Regulation 635-212.

3.  The evidence further shows that after consulting with counsel, the applicant acknowledged the proposed separation action for unfitness.  He waived his opportunity to appear before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged he understood the effects of being issued a UD.

4.  The applicant has provided no evidence or argument to show his discharge should be upgraded and his military records contain no matter upon which an upgrade should be granted.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would have jeopardized his rights.

5.  Award of a clemency discharge does not provide for an upgrade of an individual’s discharge.  It simply restored civil rights that were otherwise lost.  Upon receipt of his clemency discharge, he was also advised to apply to the ADRB to a possible upgrade of his discharge.  There is no evidence he applied to the ADRB or that his discharge was upgraded by the ADRB.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  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)                                         AR20090017613



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ABCMR Record of Proceedings (cont)                                         AR20090017613



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