IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009893 


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 to a general discharge.

2.  The applicant states:

* He would like his clemency discharge issued pursuant to Presidential Proclamation Number 4313 upgraded to a general discharge
* Racial prejudice was very active and unjust 35 years ago and should not be allowed to persist today 

3.  The applicant provides no documentary 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 enlisted in the Regular Army on 13 March 1967 for a period of 
3 years.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 13A (field artillery basic).  On 14 June 1968, he was honorably discharged for immediate reenlistment.  He reenlisted on 15 June 1968 for a period of 3 years. 

3.  On 3 December 1968, nonjudicial punishment (NJP) was imposed against the applicant under Article 15, Uniform Code of Military Justice (UCMJ), for two specifications of being absent without leave (AWOL) (4 hours on 1 December 1968 and 6 hours on 2 December 1968).  His punishment consisted of a reduction to E-3 and a forfeiture of pay.

4.  On 20 January 1969, the applicant was convicted by a special court-martial of assault upon another Soldier by kicking him in the head with a boot and thereby intentionally inflicting grievous bodily harm upon him (moderate concussion of the skull and cuts and bruises around the head and face) and being AWOL from 
1 January 1969 to 6 January 1969.  He was sentenced to be confined at hard labor for 6 months and to forfeit $73 pay per month for 6 months.  On 30 January 1969, the convening authority approved the sentence.  The unexecuted portion of the sentence to confinement and any uncollected forfeitures were remitted effective 2 April 1969. 

5.  On 3 July 1969, NJP was imposed against the applicant under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  On 20 February 1970, the applicant was convicted by a special court-martial of assault upon another Soldier by striking at him with a dangerous weapon 
(a straight razor) and cutting this Soldier with a straight razor.  He was sentenced to be confined at hard labor for 3 months.  On 31 March 1970, the convening authority approved the sentence. 

7.  On 28 May 1970, the applicant went AWOL and returned to military control on 14 September 1970.  On 16 September 1970, without authority and with intent to remain away permanently, the applicant absented himself from his unit and remained so absent in desertion until he was apprehended on 20 October 1970.  On 5 November 1970, charges were preferred against the applicant for the AWOL period and desertion charge.  Trial by special court-martial was recommended.

8.  On 27 November 1970, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

9.  On 22 January 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

10.  Accordingly, the applicant was discharged with an undesirable discharge on 28 January 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served a total of 2 years, 10 months, and 7 days of creditable active service with 374 days of time lost.

11.  The available records  contain a certificate, dated 4 November 1975, from the President of the United States (President Ford), which states the applicant was granted a full pardon and was awarded a clemency discharge issued pursuant to Presidential Proclamation 4313 (PP 4313) of 16 September 1974.

12.  A DD Form 215 (Correction to DD Form 214), dated 19 December 1975, added the entry "DD 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No. 4313" to item 30 (Remarks) on the applicant's DD Form 214.

13.  The available records contain a letter, dated 4 February 1976, which states the applicant was awarded a clemency discharge pursuant to PP 4313 of 
16 September 1974.

14.  On 8 December 1976, the Army Discharge Review Board (ADRB) denied the applicant's request for a discharge upgrade.  On 2 October 1978, the ADRB denied the applicant's request for a discharge upgrade.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that 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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

16.  PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals:  (1) fugitives from justice who were 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 undesirable discharge for violation of articles 85 (desertion), 86 (absent without leave), or 87 (missing movement) of the Uniform Code of Military Justice.  The third group could apply to a Presidential Clemency Board, which was made up of individuals appointed by the President who would establish a period of alternate service of not more than 24 months that the individual should perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a clemency discharge.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record which shows the applicant was a victim of racial discrimination.

2.  The evidence of record shows the applicant was discharged with an undesirable discharge on 28 January 1971.  Evidence of record shows he was awarded a clemency discharge in 1975 pursuant to PP 4313 of 16 September 1974.  The governing Proclamation states the clemency discharge did not affect the underlying discharge.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant's record of service during his last enlistment included two NJP actions, two special court-martial convictions for serious offenses, and 374 days of time lost due to AWOL and desertion.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

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)                                         AR20100009893





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ABCMR Record of Proceedings (cont)                                         AR20100009893



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