IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100027548 


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 an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he was given a full pardon and he had his discharge changed to a "clemency discharge pursuant to Presidential Proclamation Number 4313."  He feels his character of service should also be upgraded.

3.  The applicant provides:

* His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* His DD Form 215 (Correction to DD Form 214)
* A letter and certificate from the Presidential Clemency Board
* Two letters of support/character reference

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 was inducted into the Army of the United States on
8 September 1969.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 20 February 1970, at Fort Jackson, SC, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 10 February 1970 to on or about 19 February 1970.

4.  On 20 April 1971, at Fort Gordon, GA, he was convicted by a special court-martial of one specification of being AWOL from on or about 7 January to on or about 2 March 1971.  The court sentenced him to a reduction to private (PV2)/
E-2.

5.  On 4 October 1971, he departed his Fort Campbell, KY, unit in an AWOL status and on the same date he was dropped from the rolls of the Army as a deserter.  He was apprehended by Federal authorities and he was returned to military control on 3 July 1972.

6.  On 11 July 1972, court-martial charges were preferred against him for one specification of being AWOL from on or about 4 October 1971 to on or about
1 July 1972.

7.  On 13 July 1972, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, he indicated that he had not been subjected to coercion with respect to his request for discharge.  He also acknowledged he understood that if the discharge request was approved, he could be deprived of 

many or all Army benefits, that he could expect to encounter substantial prejudice in civilian life, could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further elected not to submit a statement in his own behalf.

9.  His immediate, intermediate, and senior commanders recommended approval of his discharge with an Undesirable Discharge Certificate.

10.  On 27 July 1972, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  He directed the issuance of an Undesirable Discharge Certificate and reduction to private (PV1)/E-1.  On 27 July 1972, he was discharged accordingly.

11.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of a court-martial with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate. This form further confirms he completed 1 year, 7 months, and 7 days of creditable active military service with 470 days of time lost.

12.  On 23 December 1975, the Army Discharge Review Board (ADRB) awarded him a clemency discharge (neutral discharge) pursuant to Presidential Proclamation Number 4313, dated 16 September 1974.  With that, he was issued:

* A DD Form 215, dated 10 December 1975, that added the issuance of a clemency discharge
* A letter, dated 28 August 1975, explaining to him that a clemency discharge is a neutral discharge that replaced his undesirable discharge
* A Presidential certificate of full pardon

13.  On 29 December 1976, the ADRB denied his petition for an upgrade of his discharge.

14.  He submitted two letters of support, dated 28 and 29 April 2010, from a high school principal and assistant principal who both characterize the applicant as a caring, motivational, punctual, and devoted employee.

15.  Presidential Proclamation 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was 

members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under Presidential Proclamation 4313 or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals were to perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge.  The Clemency Discharge did not affect the underlying discharge and did not entitle the member to any benefits administered by the VA.

16.  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 Veterans Administration 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.

17.  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 evidence of record shows the applicant was charged with the commission of an offense 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.  He consulted with counsel and he was advised of the contemplated trial by court-martial for his offense.  Only then did he voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights. Furthermore, his overall military service was tarnished by various types of misconduct including one instance of NJP, one instance of a court-martial, and multiple instances of AWOL.

3.  Although he was granted a clemency discharge, the clemency discharge did not affect the underlying discharge and did not entitle the member to any benefits administered by the VA.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20100027548



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ABCMR Record of Proceedings (cont)                                         AR20100027548



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