BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090019840


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 clemency discharge issued to her father, a deceased former service member (FSM).

2.  The applicant states the FSM died suddenly on 14 October 2009.  He was a veteran of the Vietnam War and he was given a bad conduct discharge (BCD) on 29 June 1973.  On 5 November 1975, he received a full and unconditional pardon from President Gerald R. Ford in the form of a clemency discharge.

3.  The applicant provides:

* proof of her relationship to the FSM
* a copy of the FSM's death certificate
* a copy of an 11 November 1975 letter from the Department of Justice announcing his pardon
* a copy of the 5 November 1975 Presidential Pardon Certificate
* a copy of a DD Form 1953A (Clemency Discharge Certificate)

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was inducted into the Army of the United States (AUS) on 17 September 1965.  He completed the required training and was awarded military occupational specialty 51B (carpenter).  He served in the AUS until honorably discharged on 29 March 1967 for the purpose of immediate enlistment in the Regular Army (RA).  He enlisted in the RA for 4 years on 30 March 1967.

2.  The FSM's DA Form 20 (Enlisted Qualification Record) shows in item 31 (Foreign Service) that he served in the Republic of Vietnam from on or about 30 January 1966 through on or about 30 January 1967.  It does not show any significant acts of achievement or valor during his military service, showing only that he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Marksman Marksmanship Qualification Badge with Rifle Bar (M-14), and two overseas service bars.

3.  The FSM's DD Form 214 (Report of Separation from Active Duty) shows in item 27 (Remarks) that he had 1564 days of lost time under Title 10, U.S. Code, section 972.  It also shows his 1 year, 6 months, and 13 days of AUS service and 1 year, 11 months, and 17 days of RA service, for total service of 3 years and 6 months.

4.  The FSM's records show periods of absence without leave (AWOL), confinement by military authorities (CMA), and confinement by civil authorities (CCA) as follows:

* AWOL from 22 August 1967 to 12 October 1967
* AWOL from 30 October 1967 to 16 November 1967
* CMA from 20 November 1967 to 23 November 1967
* AWOL from 9 December 1967 to 20 May 1968
* AWOL from 6 June 1968 to 20 June 1968
* CMA from 8 August 1968 to 31 October 1968
* CCA from 21 January 1969 to 12 February 1969
* AWOL from 22 July 1969 to 29 September 1969
* AWOL from 1 October 1969 to 16 July 1972
* CMA from 18 July 1972 to 7 November 1972

5.  On 28 September 1972, the FSM was tried and convicted by a general court-martial for the offense of AWOL from 1 October 1969 to 16 July 1972.  He was sentenced to a BCD, forfeiture of $80.00 pay per month for 8 months, confinement at hard labor for 8 months, and reduction to the lowest enlisted grade.

6.  The FSM was released from confinement on 8 November 1972 and placed on excess leave without pay until 29 June 1973 when his BCD was executed.

7.  Presidential Proclamation 4313, issued 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and 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.  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, neither honorable nor less than honorable.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Department of Veterans Affairs.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial or stand trial for their offenses and accept whatever punishment resulted.

8.  Army Regulation 635-200 (Personnel Separations) governs the policies and procedures 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  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.

10.  Public Law 98-209 (The Military Justice Act of 1983) provides that military correction boards may not disturb the finality of a conviction by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed the FSM's BCD was issued in accordance with law and regulations applicable at the time.

2.  While the FSM served in Vietnam, this service was not so redeeming as to outweigh his 1564-day period of AWOL and confinement.

3.  Under the provisions of Presidential Proclamation 4313, the FSM was required to request and receive discharge in lieu of trial by court-martial or stand trial (it appears the FSM elected to stand trial), then serve up to 12 months of alternate service.  The evidence of record shows he completed the alternative service.

4.  The FSM was granted a clemency discharge under Presidential Proclamation 
4313, which restored his civil rights but did not change the underlying discharge.  His clemency discharge, considered a neutral discharge, did not entitle him to any benefits administered by the Department of Veterans Affairs and did not require the underlying discharge be upgraded in order to secure such benefits.

5.  The character of the FSM's discharge is commensurate with his overall record of military service and there is no justification for upgrading his discharge.

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

7.  The Board does not upgrade properly-issued discharges solely to establish entitlement to benefits from other agencies.

8.  The applicant has not provided any compelling evidence or convincing argument to further mitigate the FSM's serious AWOL offenses.  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)                                         AR20090019840



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ABCMR Record of Proceedings (cont)                                         AR20090019840



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