BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110002466 


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.

2.  The applicant states he was absent without leave (AWOL) to take care of his grandparents who raised him because he felt they needed him more than the Army did, which was a stupid mistake on his part.

3.  The applicant provides a character reference letter from his pastor.

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 in Nashville, Tennessee, on 8 June 1970 and was transferred to Fort Campbell, Kentucky, to undergo basic training.  He completed basic training and was transferred to Fort Knox, Kentucky, on 10 August 1970 to undergo advanced individual training (AIT) as an armor reconnaissance specialist.

3.  On 17 September 1970, the applicant submitted a request for a hardship discharge to take care of his elderly grandparents who lived on a farm in Tennessee.  He stated in his request that his grandparents had no one else to take care of them as he was the only grandchild; however, he listed his father and step-mother as living at the same address as his grandparents.  His request was disapproved on 2 November 1970 due to not meeting the criteria established in chapter 6 of Army Regulation 635-200 (Personnel Separations).

4.  The applicant received orders transferring him to the Overseas Replacement Station at Fort Jackson, South Carolina, for assignment to Germany, and he departed Fort Knox on 6 October 1970 with a report date to Fort Jackson of 25 November 1970.

5.  He failed to report on 25 November 1970 and was reported as being AWOL.  He remained absent in desertion until he returned to military control at Fort Campbell on 7 February 1971.  He again was AWOL on 12 February 1971 and remained absent until he returned to military control on 18 February 1971.

6.  On 23 March 1971 after pleading not guilty to the charges against him, he was convicted by a special court-martial of being AWOL from 25 November 1970 to 7 February 1971 and from 12 to 18 February 1971.  He was sentenced to a forfeiture of $90.00 pay per month for 2 months.

7.  On 27 April 1971, he again was AWOL and remained absent in desertion until he was apprehended by civil authorities in McMinnville, Tennessee, on 17 June 1974 and returned to military control at Fort Campbell, Tennessee.

8.  On 16 October 1974, the applicant contacted officials at Fort Benjamin Harrison, Indiana, requesting to participate in the program established by Presidential Proclamation 4313 of 16 September 1974.  The applicant reported to the Joint Clemency Processing Center at Fort Benjamin Harrison on 5 November 1974.

9.  On 6 November 1974 after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Presidential Proclamation 4313, dated 16 September 1974.  He indicated he understood he would be discharged under other than honorable conditions and he could be deprived of service benefits, benefits administered by the Veterans Administration (VA), and rights and benefits under State and Federal laws.  He also acknowledged he had not been coerced by anyone in anyway to request such a discharge, that he must report to the State Director of Selective Service to arrange for performance of 20 months of alternate service, that upon satisfactory completion of such service he would be issued a Clemency Discharge Certificate, and that the certificate did not alter his ineligibility for benefits.

10.  His request was approved and he was discharged under other than honorable conditions on 6 November 1974 under the provisions of Presidential Proclamation 4313.  He completed 8 months and 28 days of total active service and had 1,340 days of lost time due to AWOL.

11  There is no indication he ever applied for a hardship discharge or compassionate reassignment.

12.  There is no indication in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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 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.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation 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 in lieu of trial by court-martial at any time after charges were preferred.  A condition of submitting such a request was that the individual concerned must indicate he or she was submitting the request of his or her own free will without coercion from anyone and he or she had been briefed and understood the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions was then and is still normally considered appropriate.  However, at the time an undesirable discharge was given.

15.  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.

16.  Paragraph 3-7 of Army Regulation 635-200 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been noted; however, these in and of themselves are not sufficient to warrant an upgrade to a discharge under honorable conditions given his short amount of service and the length of his absence.

2.  The applicant's administrative discharge under Presidential Proclamation 4313 was accomplished in accordance with applicable laws and regulations with no indication of any of the applicant's rights being violated.  Accordingly, his undesirable discharge appropriately reflects the character of his service.

3.  It is also noted that by allowing the applicant to administratively separate under Presidential Proclamation 4313, he avoided being tried by court-martial and having a felony offense on his records.  Given his undistinguished record of service and his extensive absences, there is no basis 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)                                         AR20110002466



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ABCMR Record of Proceedings (cont)                                         AR20110002466



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