IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20090021781 


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 discharge (HD).

2.  The applicant states he is requesting an upgrade based on clemency.  He was told that after 6 months his UD would be automatically upgraded.

3.  The applicant provides copies of his DD Form 214 (Report of Transfer or Discharge) and an insurance election form.

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 enlisted in the Regular Army on 20 October 1971 and completed basic training.
3.  During advanced individual training he was absent without leave (AWOL) for the periods 21 January 1972 through 29 February 1972 and 6 March 1972 through 17 May 1972.

4.  On 25 May 1972, court-martial charges were preferred for the two periods of AWOL.

5.  On 31 May 1972, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request were accepted, he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UD.

6.  On 6 June 1972, his unit commander recommended the applicant be given a UD.

7.  The discharge authority approved the separation request on 12 June 1972 and directed the applicant receive a UD.

8.  The applicant was discharged under conditions other than honorable on 29 June 1972 with 4 months and 17 days of creditable service with 112 days of lost time.  His DD Form 214, block 26a (Non-pay Periods Time Lost), omits his first period of AWOL (21 January 1972 through 29 February 1972), but includes this period in block 30 (Remarks) in the calculation of 112 days of lost time.

9.  On 17 March 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  As in effect at that time, it provided the following:

	a.  An honorable discharge was a separation with honor.  The honorable characterization of service was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty.

	b.  A Soldier would not necessarily be denied an HD solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the Uniform Code of Military Justice.  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."

	c.  A general discharge was a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.

	d.  A discharge under other than honorable conditions was an administrative separation from the service under conditions other than honorable.  It might be issued for misconduct or in lieu of trial by court martial when the reason for separation was based upon a pattern of behavior that constituted a significant departure from the conduct expected of Soldiers of the Army.  At the time the discharge was referred to as a UD.

	e.  Under chapter 10, 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 benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UD Certificate would normally be furnished to an individual who was discharged for the good of the service.

11.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

12.  Black's Law Dictionary defines clemency to be an act of grace.  It is based on the policy of fairness, justice, and forgiveness.  It is not a right, but rather a privilege, and one who is granted clemency does not have the crime forgotten, but is forgiven and treated more leniently for the criminal acts.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he is requesting an upgrade based on clemency.  He was told that his UD would be automatically upgraded after 6 months.
2.  There is not now nor has there ever been any provision for an automatic upgrade of a discharge executed under Army Regulation 635-200, chapter 10.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offense for which he was discharged and is appropriate for the applicant's overall record of military service.

4.  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.

5.  By his own admission, the applicant does not believe there was an error or injustice in the processing or execution of his discharge.

6.  The applicant's periods of lost time were almost equal to his period of creditable service.  His creditable service was unremarkable and he did not even complete advanced individual training.  To grant an upgrade based solely on a request for clemency would place him on an equal footing for benefits and privileges with Soldiers who did not commit the acts that led to his discharge.

7.  The applicant provided no evidence that would justify an upgrade based on clemency.  Therefore, it would not be appropriate to grant 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)                                         AR20090021781



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ABCMR Record of Proceedings (cont)                                         AR20090021781



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