IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110004405 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 21 November 1969 was corrected to show the entry "DD Form 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation (PP) Number 4313."  He states that section 2 of PP 4313 states, "Successful completion of 2 years alternate service as directed by the Military Department."  He contends that his overseas service in Korea and Germany totaling 2 years, 1 month, and 3 days qualifies as alternate service.

3.  The applicant provides:

* DD Forms 214 for the periods ending 10 March 1965 and 21 November 1969
* DD Form 215 (Correction to DD Form 214), dated 26 January 1976

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 was inducted into the Army of the United States on 10 March 1964.  He served as a heavy vehicle driver and was honorably discharged on 10 March 1965 for immediate enlistment in the Regular Army.  His enlistment contract shows he enlisted on 11 March 1965 for a period of 6 years.  He arrived in Korea on 2 July 1965.

3.  On 26 July 1965, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 20 May 1965 to 27 May 1965.

4.  On 23 May 1966, NJP was imposed against the applicant for being AWOL from his place of duty and violating a lawful regulation.

5.  He departed Korea on 1 August 1966.

6.  He arrived in Germany on 9 September 1966.

7.  On 27 February 1967, NJP was imposed against the applicant for failing to go to his appointed place of duty.

8.  He was promoted to sergeant on 26 May 1967.

9.  He departed Germany on 22 September 1967.

10.  On 28 June 1969, NJP was imposed against the applicant for failing to report for training.

11.  On 7 August 1969, he was again AWOL and returned to military control on 23 September 1969.

12.  On 23 September 1969, charges were preferred against the applicant for the AWOL period and for violating a lawful general regulation.  Trial by special court-martial was recommended.

13.  On 16 October 1969 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he should be discharged from the Army due to his financial problems
* he made the rank of sergeant in May 1967
* he served in Korea and Germany
* he has two Army Good Conduct Medals 
* he was AWOL due to marital and financial problems

14.  The separation authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate.

15.  He was discharged accordingly on 21 November 1969 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 5 years, 6 months, and 17 days of creditable active service with 54 days of lost time.

16.  On 23 July 1970, the Army Discharge Review Board denied his request for a discharge upgrade.

17.  A DD Form 215, dated 26 January 1976, added the entry "DD 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No. 4313" to item 30 (Remarks) of his DD Form 214 for the period ending 21 November 1969.

18.  The available records contain a letter, dated 18 May 1976, which states the applicant was awarded a clemency discharge pursuant to PP 4313 of 16 September 1974.

19.  There is no evidence that shows he applied to a Presidential Clemency Board for alternate service.

20.  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, the 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.

21.  PP 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 (UCMJ).  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 VA.

22.  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.

23.  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 does not support his contention that his overseas service in Korea and Germany qualified as alternate service for PP 4313 purposes.  PP 4313 states prior members of the Armed Forces who had been discharged with an undesirable discharge for violation of Article 86 (AWOL) of the UCMJ could apply to a Presidential Clemency Board who would establish a period of alternate service of not more than 24 months that the individual should perform.  No evidence shows he applied to a Presidential Clemency Board for alternate service.

2.  The evidence shows he was discharged under other than honorable conditions on 21 November 1969 and issued an Undesirable Discharge Certificate.  The evidence also shows he was awarded a clemency discharge in 1976 pursuant to PP 4313 of 16 September 1974.  The governing proclamation states the clemency discharge did not affect the underlying discharge.

3.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

4.  His record of service during his last enlistment included four NJP actions and 54 days of lost time 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.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  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)                                         AR20110004405



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004405



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1