IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100018314 


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 that his discharge be upgraded.

2.  He states he was informed his discharge can be upgraded since he participated in the amnesty program.  He was released from incarceration in 1996, has not been in trouble since, and has been sober since 2 March 1992.

3.  He provides no additional evidence.

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.  His military records show he was inducted into the Army of the United States in pay grade E-1 on 11 January 1967 for 2 years.  He completed training and was awarded military occupational specialty 31E (Field Radio Repairman).  He was advanced to pay grade E-2 on 11 May 1967.

3.  He was punished under Article 15, Uniform Code of Military Justice (UCMJ), on 11 August 1967 for absenting himself from guard duty and failure to repair for reveille.

4.  He was reported absent without leave (AWOL) on 29 September 1967.

5.  On 23 January 1975, he was advised in writing of his eligibility to participate in the program established by Presidential Proclamation 4313 of 16 September 1974.  He was also advised to report to Fort Benjamin Harrison, IN, and that he would be given an opportunity to request a discharge for the good of the service in accordance with existing Department of Defense regulations, to reaffirm his allegiance to his country, and to pledge to perform alternative service for a period not to exceed 24 months.

6.  He was returned to military control on 29 January 1975.

7.  On 30 January 1975 after consulting with counsel, he voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313.  He acknowledged that his unauthorized absence rendered him triable under the UCMJ and could lead to the imposition of a bad conduct discharge or dishonorable discharge.  He also acknowledged he would be discharged under other honorable conditions and furnished an Undesirable Discharge (UD) Certificate.  He further acknowledged that within 15 days of the date of receipt of his UD he must report to the State Director of Selective Service to arrange for the performance of alternate service.  He further acknowledged that satisfactory completion of such alternate service would be acknowledged by the issuance of a Clemency Discharge Certificate.  He reaffirmed his allegiance and pledged to complete a period of 24 months of alternate service.

8.  He was discharged from active duty in pay grade E-1 on 30 January 1975 for the good of the service by reason of a willful and persistent unauthorized absence pursuant to Presidential Proclamation 4313.  His character of service was under other than honorable conditions and he was furnished a UD Certificate.  He was credited with 8 months and 24 days of net active service.  He also had 486 days of lost time prior to his normal expiration of term of service of 7 May 1972 and 2208 days of lost time after his normal expiration of term of service.

9.  In a letter, dated 27 January 1977, the National Headquarters, Selective Service System, Washington, DC, advised the Commander, Reserve Components Personnel and Administration Center, St. Louis, MO, that the applicant had been terminated from enrollment in the Reconciliation Service Program as he had not completed his required period of alternate service.  The decision to terminate the applicant from active enrollment was based on the fact the applicant commenced work on an approved job and was dismissed for unsatisfactory performance and he failed to respond to official communications.  The letter also stated the applicant would be notified of the termination.

10.  No evidence shows he applied to the Army Discharge Review Board to upgrade his discharge within its 15-year statute of limitations.

11.  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 they would receive a UD.  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 and the military service issued the clemency discharge.  A clemency discharge did not restore veterans' benefits; rather, it restored Federal and, in most instances, State civil rights which might have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternate service, the original characterization of service would be retained.

12.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, states 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 would be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to an honorable or general under honorable conditions discharge.

2.  His contentions have been noted; however, they do not sufficiently support his request and do not serve as mitigation in his case.  Presidential Proclamation 4313 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.

3.  The evidence shows that upon return from a lengthy and willful unauthorized absence, he agreed to be discharged and complete alternate service.  In January 1977, he was terminated from the program based on his dismissal for unsatisfactory work performance and failure to respond to official communications.  No evidence shows he completed his alternate service pursuant to Presidential Proclamation 4313 for the issuance of a clemency discharge.

4.  The evidence shows his discharge proceedings were conducted in accordance with law and the provisions of Presidential Proclamation 4313 in effect at the time with no indication of procedural errors which would tend to jeopardize his rights.  He failed to complete the period of alternative service; therefore, he was not provided a clemency discharge certificate and his original characterization of service was retained.

5.  It is also noted that participation and successful completion of the Clemency Program did not provide for an upgrade of an individual's discharge.  It simply restored civil rights that were otherwise lost had individuals not participated.

6.  In view of the foregoing, there is no basis for granting his request.


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 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)                                         AR20100018314



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ABCMR Record of Proceedings (cont)                                         AR20100018314



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