BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110012361 


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. 

2.  The applicant states his discharge was supposed to be upgraded after completing the President's program.

3.  The applicant provides:

* Letter, dated 30 November 1976, from the Selective Service System
* Certificate of Completion from the Selective Service System
* DD Form 214 (Report of Separation from Active Duty)

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 15 July 1964.  He completed his training and was awarded military occupational specialty 11C (heavy weapons infantryman).  On 27 July 1965, he was honorably discharged for enlistment in the Regular Army (RA).  He enlisted in the RA on 
28 July 1965 for a period of 4 years.  

3.  On 15 February 1966, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. 

4.  On 23 January 1968, he was convicted by a special court-martial of two specifications of being absent without leave (AWOL) from 12 July 1967 to 
7 August 1967 and from 9 August 1967 to 22 January 1968.  He was sentenced to be reduced to E-1, forfeit $86.00 pay per month for 6 months, and to be confined at hard labor for 6 months.  On 23 January 1968, the convening authority approved the sentence. 

5.  On 6 November 1968, NJP was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty.

6.  He went AWOL on 14 August 1969 and he returned to military control on 
1 February 1975.   

7.  On 4 February 1975, after consulting with counsel, the applicant submitted a request for discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313 (PP 4313), dated 16 September 1974.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He also acknowledged that he must report to his State Director of Selective Service to arrange for performance of alternate service within 15 days of the date of receipt 
of the Undesirable Discharge Certificate.  He indicated that he understood satisfactory completion of the alternate service would be acknowledged by the issuance of a Clemency Discharge Certificate.

8.  On 4 February 1975, the applicant executed a Reaffirmation of Allegiance and Pledge to Complete Alternate Service and pledged to complete a period of 
16 months alternate service.

9.  He was discharged with an undesirable discharge on 4 February 1975 for the good of the service under the provisions of PP 4313.  He had served a total of 
4 years, 4 months, and 27 days of creditable active service with 2,229 days of lost time.

10.  On 30 November 1976, he completed his required period of alternate service pursuant to PP 4313 of 16 September 1974.

11.  A DD Form 215 (Correction to DD Form 214), dated 30 November 1976, added the entry "DD 1953A Clemency Discharge Issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313" to item 27 (Remarks) of the applicant's DD Form 214.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

13.  PP 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 PP 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 would 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.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.  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.

15.  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.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged with an undesirable discharge on 4 February 1975.  Evidence of record 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.

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

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  His record of service during his enlistment in the RA included two NJP actions, one special court-martial, and 2,229 days of lost time.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110012361





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ABCMR Record of Proceedings (cont)                                         AR20110012361



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