IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100017400 


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 discharge to a general discharge.

2.  The applicant states he would like his discharge upgraded so he may receive health benefits.

3.  The applicant provides a Selective Service System letter indicating completion of his reconciliation service, his Clemency Discharge, his DD Form 214 (Report of Separation from Active Duty), and his DD Form 215 (Correction to DD Form 214 Certificate of Release or Discharge from Active Duty).

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 was inducted into the Army of the United States on 20 March 1969 and enlisted in the Regular Army on 26 March 1969.  He completed initial entry training, was awarded the military occupational specialty of operation room specialist, and was promoted to pay grade E-4.

3.  His records show he received the National Defense Service Medal and the Vietnam Service Medal.

4.  His records show he departed absent without leave (AWOL) on 10 April 1970 and was dropped from the rolls of the Army and declared a deserter on 13 May 1970.  He was returned to military control on 3 September 1974.

5.  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 26 September 1974, under the provisions of Presidential Proclamation 4313, with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  His DD Form 214 also indicates he had a total of 1 year, 1 month, and 9 days of creditable active service; 710 days of time lost before normal expiration of term of service; and 887 days of time lost after his normal expiration of term of service.  Item 27 (Remarks) shows he agreed to serve 23 months alternate service pursuant to Presidential Proclamation 4313.

6.  He received a certificate of completion of the prescribed Reconciliation Service dated 6 October 1976.  This document indicated completion was in accordance with his signed agreement.

7.  A Selective Service System letter, dated 2 November 1976, indicated he completed his alternate service pursuant to Presidential Proclamation 4313, dated 16 September 1974.  It shows he was granted a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974.  He was given a DD Form 215 to be attached to his DD Form 214, which added a statement in item 27, which read "DD Form 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313."

8.  The applicant was further advised that he could apply to the Army Discharge Review Board (ADRB) for review and possible change to his discharge.  There is no evidence he applied to the ADRB to upgrade his discharge.

9.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  
Alternate service was to be performed under the supervision of the Selective Service System.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service.  The military services issued the actual clemency discharges.  The clemency discharge is a neutral discharge, neither honorable nor less than honorable.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

10.  Army Regulation 635-200 sets forth the policy 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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  Evidence indicates the applicant completed 23 months of alternate service under the provisions of Presidential Proclamation 4313 and was issued a Clemency Discharge.

2.  His records show he had approximately 1597 days of time lost due to being AWOL.  The character of his discharge is commensurate with his overall record of military service and he has not provided sufficient evidence to mitigate the actions he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

3.  The ABCMR does not upgrade properly issued discharges solely for the purpose of establishing eligibility for other programs or benefits.

4.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100017400



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ABCMR Record of Proceedings (cont)                                         AR20100017400



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