IN THE CASE OF:	  

		BOARD DATE:	 27 January 2011 

		DOCKET NUMBER:  AR20100019190 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant provides no explanation or mitigating circumstances to support his request for an upgrade of his discharge. 

3.  The applicant provides no supporting documents with 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 with a moral waiver in Philadelphia, Pennsylvania on 23 May 1967 for a period of 3 years and training in the Armor career management field.
3.  He completed all of his training at Fort Knox, Kentucky and was transferred to Korea on 24 March 1968 for assignment to Company A, 1st Battalion, 72d Armor, 2d Infantry Division.  He was advanced to the pay grade of E-4 on 10 May 1968.

4.  On 17 March 1969, orders were published by Headquarters, 2d Infantry Division reassigning the applicant to the Infantry Center at Fort Benning, Georgia.  The applicant departed Korea on 23 April 1969 and on 2 June 1969 he reported to Company B, 4th Battalion, 69th Armor Regiment at Fort Benning.

5.  On 6 August 1969, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 2 August to 4 August 1969.

6.  On 18 December 1969, he was convicted by a special court-martial of being AWOL from 12 September to 3 November 1969 and from 8 November to 26 November 1969.  He was sentenced to a reduction to the pay grade of E-4 and a forfeiture of pay.

7.  On 2 January 1970, he again went AWOL and remained absent in a desertion status until he surrendered to military authorities at Fort Meade, Maryland on 21 January 1971, where charges were preferred against him for the AWOL offense.

8.  On 29 January 1971, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

9.  All of the facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in 1972.  However, his records contain a duly authenticated 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under other than honorable conditions on 18 February 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 2 years, 6 months, and 22 days of total active service and 554 days of lost time due to being AWOL and in confinement.

10.  For reasons that are unexplained in the available records, his DD Form 214 reflects that he served in Vietnam and was awarded the Vietnam Service Medal and the Vietnam Campaign Medal.  However, there is no evidence to show he ever served in Vietnam.    

11.  On 17 February 1976, the applicant received notification that he was being awarded a clemency discharge pursuant to presidential proclamation 4313.  He was also advised that he could apply to the Army Discharge Review Board (ADRB) for review and possible change of his discharge.  However, there is no evidence to show that he applied to the ADRB within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.

13.  Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals.  These groups were fugitives from justice who were draft evaders; members of the Armed Forces who were in an unauthorized absence status; and prior members of the Armed Forces who had been discharged with a punitive discharge for violations of Articles 85, 86, or 87 of the Uniform Code of Military Justice.  The last group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military and members of the Reserve components) who would make a determination regarding the performance of alternate service.  That board was authorized to award a Clemency Discharge without the performance of alternate service (excusal from alternate service).  The dates of eligibility for consideration under this proclamation for those already discharged from the military service were 4 August 1964 to 28 March 1973, inclusive.  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, 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.  A Clemency Discharge does not affect the underlying discharge and does not entitle the individual to any benefits administered by the Department of Veterans Affairs.  While there is no change in benefit status per se, a recipient may apply to the Department of Veterans Affairs for benefits.

14.  Paragraph 3-7 of Army Regulation 635-200 provides that 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.  

15.  Paragraph 3-7 also 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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

4.  The applicant's record of service has been reviewed; however, his service was not sufficiently mitigating to warrant relief when compared to the extensive length of his absences and his overall length of service.  His service simply does not rise to the level of even 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)                                         AR20100019190



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ABCMR Record of Proceedings (cont)                                         AR20100019190



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