IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009092 


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 his bad conduct discharge be upgraded.

2.  He states he was given a full pardon by President Ford.  He is trying to get details of Presidential pardons.

3.  He provides copies of the following:

* Pages 1 through 3 of his DA Form 20 (Enlisted Qualification Record)
* His DA Form 20B (Insert Sheet to DA Form 20)
* 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 record shows he enlisted in the Regular Army in pay grade 
E-1 on 29 July 1968, for 3 years.  He completed training and was awarded military occupational specialty 63B (wheel vehicle repairman).  He was promoted to pay grade E-4 on 10 February 1969.  He served in Vietnam from 13 December 1968 through 25 August 1969.

3.  On 22 November 1971, he was convicted by a general court-martial of being absent without leave (AWOL) from 15 November 1969 to 5 January 1970 and from 10 February 1970 to 17 September 1971.  He was sentenced to a reduction to pay grade E-1, confinement at hard labor for 9 months, and to be discharged from the Army with a bad conduct discharge.  The sentence was adjudged on 22 November 1971 and he was placed in confinement.

4.  On 27 March 1972, the U.S. Army Court of Military Review affirmed the findings of guilty and reassessed the sentence.  The approved and affirmed sentence included a bad conduct discharge, 5 months confinement, and reduction to E-1.

5.  There is no evidence he petitioned the U.S. Army Court of Military Appeals within the allotted timeframe.

6.  His bad conduct discharge was ordered to be duly executed.  He was discharged on 4 April 1972  in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1, as a result of a general court-martial with a character of service of under conditions other than honorable.  He was credited with 1 year, 5 months, and 28 days of net active service and 798 days of lost time.

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11, paragraph 11-1b, provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the sentence affirmed before it could be duly executed.

8.  Army Regulation 635-200, paragraph 3-7a, specified 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 inappropriate.

9.  Army Regulation 635-200, paragraph 3-7b, specified 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 separation specifically allowed such characterization.

10.  Presidential Proclamation 4313 was issued by President Ford and affected three groups of individuals.  These groups were: (1) Draft evaders; (2) Members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or discharge for violation of Articles 85, 86, or 87 of the Uniform Code of Military Justice.  The individuals who were absent from the Armed Forces were afforded an opportunity to return to military control and elect an Undesirable Discharge under Presidential Proclamation 4313.  A Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If the individuals completed the service satisfactorily, they would be entitled to receive a Clemency Discharge.  The third group could apply to the Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military and members of the Reserve Components) who would make a similar determination regarding the performance of alternate service.  

11.  Both the Joint Board and Presidential Board were authorized to award a Clemency Discharge with the performance of alternate service.  In practice, the Joint Board did not take such action while the Presidential Board did in many cases.  The dates of eligibility for consideration under Presidential Proclamation 4313 for those already discharged from the military service were 4 August 1964 to 28 March 1973 inclusive.  Alternate Service was to be performed under the supervision of the Selective Service System.  The individual was responsible for finding a job that met the requirements of the program.  He would obtain the approval of his state Selective Service officials regarding the job and reports would be furnished periodically as to how he was performing.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual’s former military service.  The military service issued the actual Clemency Discharge.  The Clemency Discharge did not entitle the individual to any benefits administered by the Veterans Administration.

12.  The U.S. States Attorney’s Manual, Standards of Consideration of Clemency Petitions, states that, as a general rule, in clemency cases the correctness of the underlying conviction is assumed and the question of guilt or innocence is not generally the issue.  In general, a pardon is granted on the basis of the petitioner’s demonstrated good conduct for a substantial period of time after conviction and service of sentence.  The following principle factors are taken into account.  (1) post-conviction conduct, character, and reputation; (2) seriousness and relative recentness of the offense; and (3) acceptance of responsibility, remorse, and atonement; (4) need for relief; and (5) official recommendations and reports.  

13.  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 change a court-martial 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.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his bad conduct discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence of record shows he was convicted by a general court-martial of a lengthy period of AWOL.  He was discharged pursuant to the sentence of a general court-martial and was issued a bad conduct discharge after the sentence was affirmed.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

3.  His contention he received a Presidential Pardon has been noted; however, there is no evidence he completed alternate service pursuant to Presidential Proclamation 4313 for the issuance of a clemency discharge.  He has provided no evidence to show that his discharge was unjust or evidence sufficient to mitigate the character of his discharge.  

4.  The Board is empowered to change the characterization of service and the narrative reason for discharge if clemency is determined to be appropriate.  The applicant's record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.  Given the above and after a thorough review of the applicant’s record and the serious nature of his offenses, there is no basis for clemency.

5.  The Office of the Pardon Attorney, Department of Justice handles pardon issues; however, that office may not have jurisdiction over his case due to the fact his discharge was administrative.  If he desires further information, he may contact the Pardon Attorney at the following address:  Department of Justice, Office of the Pardon Attorney, 4th Floor, 500 First Street, NW, Washington, DC 20530-0001.

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)                                         AR20100009092





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ABCMR Record of Proceedings (cont)                                         AR20100009092



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