IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100028545 


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 his bad conduct discharge be upgraded to general under honorable conditions.

2.  The applicant states:

* he was told he was getting a general discharge
* he was discharged for being absent without leave (AWOL)

3.  The applicant 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.  He enlisted in the Regular Army on 10 January 1963 for a period of 3 years.  He served as a track vehicle mechanic and was released from active duty on 10 January 1966 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.  He again enlisted in the Regular Army on 31 May 1967 for a period of 3 years.  He served in Vietnam from 21 July 1968 to 19 July 1969.  On 2 July 1970, he was honorably discharged for immediate reenlistment.  He reenlisted on 3 July 1970 for a period of 3 years.

3.  On 7 December 1972, he was convicted by a special court-martial of being AWOL from 7 September 1971 to 19 September 1972.  He was sentenced to be discharged from the service with bad conduct discharge.  On 21 December 1972, the convening authority approved the sentence.

4.  The U.S. Army Court of Military Review affirmation is not available.

5.  The applicant requested final action on 30 January 1973.

6.  On 31 January 1973, the convening authority ordered the bad conduct discharge to be executed.

7.  He was discharged and issued a Bad Conduct Discharge Certificate on 16 February 1973.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 16 February 1973 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, with a separation program number of 292 (Other Than Desertion (Court-Martial)).  He completed 8 years, 11 months, and 24 days of total active service with 377 days of lost time.

8.  A DD Form 215 (Correction to DD Form 214), dated 5 February 1976, added the entry "DD Form 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No. 4313" to item 30 (Remarks) of the applicant's DD Form 214 for the period ending 16 February 1973.

9.  The available records contain a letter, dated 1 March 1976, which states the applicant was awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1974.

10.  There is no indication in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11, in effect at the time, stated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

12.  Presidential Proclamation 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals:  (1) fugitives from justice who were draft evaders; (2) members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of Articles 85 (Desertion), 86 (Absent Without Leave), or 87 (Missing Movement) of the Uniform Code of Military Justice.  The third group could apply to a Presidential Clemency Board, which was made up of individuals appointed by the President who would establish a period of alternate service of not more than 24 months that the individual should 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 individual to any benefits administered by the Veterans Administration.

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.

15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.



DISCUSSION AND CONCLUSIONS:

1.  He contends he was told he was getting a general discharge.  However, the evidence of record shows he was discharged on 16 February 1973 and issued a Bad Conduct Discharge Certificate.  The evidence of record shows he was awarded a clemency discharge in 1976 pursuant to Presidential Proclamation 4313.  The governing proclamation states the clemency discharge did not affect the underlying discharge.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  His record of service during his last enlistment included one special court-martial and 377 days of time lost due to AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade of his 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 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)                                         AR20100028545



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ABCMR Record of Proceedings (cont)                                         AR20100028545



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