IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100009295 


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 undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states he previously received two honorable discharges from the Army.

3.  The applicant provides no documents 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 records show he initially enlisted in the Regular Army (RA) on 23 October 1959.  On 17 August 1962, he reenlisted in the RA.

3.  On 17 August 1965, the applicant again reenlisted in the RA.  He served in military occupational specialty (MOS) 76D (Ordnance Supply Specialist).

4.  The applicant’s record also reveals a disciplinary history that shows he was found guilty by court-martial on the following three separate occasions of violating the indicated Articles of the Uniform Code Military Justice (UCMJ) and was sentenced accordingly:

	a.  28 March 1960 (Special Court Martial (SPCM)) – Article 121, two
specifications of larceny - sentenced confinement at hard labor for 6 months (suspended) and forfeiture of $60.00 per month for 6 months;

	b.  23 March 1967 (Summary Court Martial (SCM)) – Article 86, two
specifications of being absent without leave (AWOL) by failing to go at the time prescribed to his appointed place of duty – sentenced to a reduction from private first class (PFC/E-3) to private (PVT/E-2), forfeiture of $90.00 pay, and 14 days restriction; and

c.  23 May 1968 (SCM) – Article 86, for failing to go at the time prescribed to
his appointed place of duty – sentenced to a reduction from specialist four (SP4/E-4) to PFC.

5.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, UCMJ, on two separate occasions.  It also shows he was formally counseled fifteen times during the period 27 March 1963 through 30 September 1970, for a myriad of disciplinary infractions that included:

* seventeen AWOL-related offenses
* violation of an off limits area
* wrongful possession of a document with forged initials
* disrespect towards a noncommissioned officer
* disobeying a lawful order


6.  The applicant's Military Personnel Records Jacket (MPRJ) contains a DA Form 3545 (Deserter Wanted by the Armed Forces) that was prepared on 7 June 1971.  It shows the applicant departed AWOL on 8 November 1970, was dropped from the rolls on 11 January 1971, and returned to military control on 
31 March 1975.

7.  The applicant's MPRJ includes a discharge request completed on 2 April 1975, which shows that after consulting with legal counsel and being advised of the nature of the offenses for which he could be tried, the maximum permissible punishment that could be imposed, the possible consequences of a UD, the nature and effect of his pledge to perform alternative service, and of the procedures and rights available to him, he voluntarily requested discharge for the good of the service under the provisions of Presidential Proclamation (PP) Number (#) 4313.

8.  In his request for discharge, he acknowledged his understanding that his absence was characterized as willful and persistent unauthorized absence which rendered him triable under the UCMJ and could have led to the imposition of a bad conduct or dishonorable discharge.  He further acknowledged his understanding that he would be discharged under other than honorable conditions, and would receive a UD, and that he was advised of and understood the adverse nature of such a discharge and the possible consequences thereof.  He further confirmed his understanding that as a result of the issue of a UD, he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the Veterans Administration (VA), and that he would be deprived of his rights and benefits as a veteran under both Federal and State law, and finally that he could expect to encounter substantial prejudice in civilian life because of a UD.

9.  Additional facts and circumstances concerning the applicant’s discharge proceedings are not in the available records.  However, his DD Form 214 shows he was discharged on 4 April 1975, under the provisions of Presidential Proclamation 4313, with a character of service of under other than honorable conditions and issued a UD Certificate.

10.  The applicant’s last DD Form 214 also shows he had completed a total of 11 years and 20 days of creditable active military service and had accrued 1,598 days of time lost.  Item 27 (Remarks) indicates he had agreed to serve 5 months of alternate service.


11.  The applicant's MPRJ contains a Selective Service System letter dated 18 August 1976, which confirms he completed the assigned period of alternate service in the Reconciliation Service Program entitling him to consideration of a Clemency Discharge.  It also includes a DD Form 215 which confirms he was issued a DD Form 1953A (Clemency Discharge) in recognition of satisfactory completion of alternate service pursuant Presidential Proclamation Number 4313.

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

13.  In PP # 4313, dated 16 September 1974, the President 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 VA.  The ADRB adopted the policy that a Clemency Discharge would be considered by a board in its deliberations but that the discharge per se did not automatically require relief be granted.

14.  The Clemency Discharge is a neutral discharge, issued neither under “honorable conditions” nor under “other than honorable conditions.”  It is to be considered as ranking between an undesirable discharge and a general discharge.  The Clemency Discharge, like a Presidential pardon, is an expression by the Chief Executive that the stigma of a bad record has been removed, and that the bearer of a Clemency Discharge should no longer be discriminated against in his future consideration.

15.  Army Regulation 635-200 (Active Duty Enlisted Administration Separations) governs the policies and procedures for the 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to a GD because he received two prior honorable discharge characterizations.

2.  The applicant’s record is void of the complete specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s discharge.  This document confirms the applicant was discharged under the provisions of Presidential Proclamation #4313, for the good of the service, and that he received a UD.  This separation document carries with it a presumption of Government regularity in the separation process.

3.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable by a punitive discharge under the UCMJ. Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  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.

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.  The two prior honorable discharges the applicant received were commensurate with the service he performed during those specific periods of service and do not provide a basis for upgrading the UD in question.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100009295





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ABCMR Record of Proceedings (cont)                                         AR20100009295



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