IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100016259 


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 be upgraded due to clemency. 

2.  He states, in effect, he was supposed to have performed 5 months of community service and been discharged under the clemency program, but the Selective Service System never found anyone to let him perform the community service.  He never heard from them again and he received the undesirable discharge.  

3.  He provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 10 January 1971 and his DD Form 214 (Report of Separation from Active Duty) for the period 27 January 1975.  

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 10 January 1969 and he was discharged on 10 January 1971 for immediate reenlistment.  He reenlisted on 11 January 1971.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on two occasions, 26 May and 19 June 1972, for the following offenses:

* Absent without leave (AWOL) from 17 to 23 May 1972
* Absent from place of duty on 24 May 1972
* Absent from his prescribed place of duty between the hours of 1730 and 0130 during the period 15 to 16 June 1972

4.  On 10 January 1975, he applied for participation in the program established by Presidential Proclamation 4313, 16 September 1974.  In a 16 January 1975, letter, a commanding officer informed him that he was eligible to participate in the program.  The letter advised him of his obligations and his opportunity to request a discharge for the good of the service in accordance with existing Department of Defense regulations.  He was also advised that those servicemen who satisfactorily completed an assigned period of alternate service of not more than 24 months would be issued a Clemency Discharge Certificate.  

5.  The facts and circumstances concerning his discharge proceedings are not in the available records.  However, his DD Form 214 shows he was discharged on 27 January 1975, under the provisions of Presidential Proclamation 4313 16 September 1974 and Department of Defense Memorandum with an under other than honorable conditions discharge.  His DD Form 214 also indicates he had 1 year, 8 months, and 17 days of creditable service and 850 days of lost time.

6.  In a 12 February 1976 letter, the manager of the Reconciliation Division informed him that he was terminated from enrollment in the Reconciliation Service Program because he did not complete his required period of alternate service.  The letter stated that the requirements of the program were explained to him and efforts were made to provide an opportunity for him to satisfactorily complete his alternate service.  The letter also stated he was not cooperative with efforts to place him on an approved job and he had refused to accept an approvable position.  

7.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s service record shows he received two Article 15s and 850 days of lost time during the period under review.  

2.  He was accepted to participate in the program established by Presidential Proclamation 4313, 16 September 1974.  In the 16 January 1975 letter, he was clearly advised of his obligations to complete the alternate service under this program.  However, he was terminated from the program because he did not successfully complete the alternate service.  The 12 February 1976 letter stated he was not cooperative with efforts to place him on an approved job and he had refused to accept an approvable position.

3.  Since he did not complete the alternative service, he was not granted a discharge under the clemency program and his undesirable characterization of service was retained.  Therefore, there is no justification for changing his undesirable 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)                                         AR20100016259



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ABCMR Record of Proceedings (cont)                                         AR20100016259



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