BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000190 


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 upgrade of his undesirable discharge (UD) to a general discharge (GD).

2.  The applicant states, in effect, that he was granted a presidential pardon which changed his discharge record.  He lost everything in a fire in 1973 and would like his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) corrected.

3.  The applicant provides no additional evidence in support of his application.

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 record shows that he enlisted in the Regular Army (RA) for a period of 3 years on 8 March 1971.

3.  The applicant’s record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for on or about 1 November 1973, at Fort Monroe, VA, did without authority, absent himself from his unit and did remain so absent until on or about 12 November 1973, in violation of Article 86, UCMJ.

4.  The record further shows the applicant was confined by civil authorities on two separate occasions for the following offenses:

* possession of LSD and possession of marijuana with intent to distribute, apprehended on 29 September 1973
* possession of amphetamines, apprehended on 11 December 1973

5.  On 20 February 1974, after consulting with counsel and being advised of his rights and options, the applicant acknowledged the intent to discharge him under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) for conviction by a civil court.  He further acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a discharge under conditions other than honorable which would deprive him of many or all of his benefits as a veteran under both Federal and State laws, and that he could expect to experience substantial prejudice in civilian life.

6.  The applicant furnished a personal statement which stated, in effect, that the overall nature or his service was honorable.  He served in the Republic of Vietnam and he received "excellent" conduct and efficiency ratings during his nearly three years of service.  His only offense was a brief AWOL.  He understood that his civil convictions serve as the grounds for his discharge but thought it unfair to receive this type of action within such a short time of his normal expiration term of service (ETS) date.  He makes no excuses or justifications for his civilian offenses and believed the stigma of these offenses was sufficient punishment.  He requested not to bear the burden of a discharge under other than honorable conditions and that his entire record be held in consideration.

7.  On 21 March 1974, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206, section IV and directed that he be reduced to the lowest enlisted grade and issued an 


Undesirable Discharge Certificate.  On 27 March 1974, the applicant was discharged accordingly.  He had completed 2 years, 11 months, and 1 day of total active service and accrued 79 days of time lost due to AWOL and confinement.

8.  The applicant's military record does not contain a certificate that confirms he was granted a clemency discharge upon completion of alternate service pursuant to Presidential Proclamation (PP) 4313.

9.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ is death or confinement in excess of 1 year.

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

12.  PP 4313, dated 16 September 1974, announced a clemency program designed to provide deserters an opportunity to work their way back into American society.  This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between 4 August 1964 and 28 March 1973.  Under this program, eligible enlisted deserters were offered the opportunity to request an undesirable discharge for the good of the service if they agreed to perform alternate service under the supervision of the Selective Service System.  Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.  Clemency Discharges issued pursuant to PP 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to a GD because he received a clemency discharge under PP 4313 was carefully considered.  However, there is insufficient evidence to grant the requested relief.

2.  The applicant's disciplinary history includes his acceptance of NJP and his accrual of 79 days of time lost due to AWOL and civil confinement.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s record is void of a clemency discharge and the facts and circumstances surrounding his discharge processing clearly reflect his overall record of service.

4.  By regulation, a clemency discharge does not impact the underlying UD received by the applicant.  The UD the applicant received was normal and appropriate under the regulatory guidance in effect at the time and under the current regulatory guidance.

5.  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.  As a result, the applicant should be denied 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)                                         AR20100000190



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ABCMR Record of Proceedings (cont)                                         AR20100000190



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