IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100019601 


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 fully honorable discharge by reason of medical or hardship reasons.

2.  The applicant states, in effect, that he gave the Army 6 good years of his life and he received a clemency discharge with a full pardon; however, the Department of Veterans Affairs (VA) will not accept the discharge.  He goes on to state that he is in need of medical care and desires an upgrade of his discharge.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) for the period ending 25 October 1973; a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 8 March 1971 and 18 September 1969; a DD Form 215 (Correction to DD Form 214), dated 26 January 1976; a copy of his Clemency Discharge Certificate, dated 25 October 1973; copies of his two Honorable Discharge Certificates; and a copy of is full pardon certificate, dated 6 November 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 in Knoxville, TN on 16 October 1968 for a period of 3 years.  He completed his basic training at Fort Campbell, KY and was transferred to Fort Riley, KS where he served as a construction and utilities worker and a heavy vehicle driver.  He was advanced to pay grade E-4 on 24 August 1969.

3.  On 18 September 1969 while stationed at Fort Rucker, AL, he was honorably discharged for the purpose of immediate reenlistment.  On 19 September 1969, he reenlisted for a period of 6 years and duty in Thailand.  He completed his tour in Thailand and he was transferred to Fort Stewart, GA.

4.  On 8 March 1971, he was honorably discharged for the purpose of immediate reenlistment.  On 9 March 1971, while serving in the pay grade of E-5, he reenlisted for a period of 6 years and assignment to Vietnam.

5.  On 14 February 1972, while assigned to Cam Ranh Bay, South Vietnam, nonjudicial punishment was imposed against him for having an unauthorized female in his room in violation of regulations.

6.  He completed 9 months of his tour in Vietnam and he was transferred to Fort Hood, TX on 16 May 1972.

7.  On 20 June 1972, nonjudicial punishment was imposed under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) against him for being incapacitated in the performance of his duties due to over indulgence in intoxicants.

8.  On 17 April 1973, he went absent without leave (AWOL) and he remained absent in desertion until he was apprehended by civil authorities and was returned to military control on 14 August 1973.  He again went AWOL and remained absent until he was returned to military control on 9 September 1973.


9.  The facts and circumstances pertaining to his administrative discharge are not contained in the available records.  However, his records do contain a duly authenticated DD Form 214 that shows he was discharged under other than honorable conditions 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 had served 4 years, 7 months, and
24 days of total active service with 138 days of time lost due to AWOL and confinement.

10.  On 18 March 1976 he was awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1974.

11.  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.  

12.  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 UCMJ.  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 VA.  While there is no change in benefit status per se, a recipient may apply to the VA for benefits.

13.  Army Regulation 635-200, paragraph 3-7a, 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.

14.  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.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

2.  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.

3. The ABCMR does not upgrade discharges based solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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)                                         AR20100019601



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ABCMR Record of Proceedings (cont)                                         AR20100019601



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