BOARD DATE:	10 January 2012

		DOCKET NUMBER:  AR20110013688


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he was drafted during the Vietnam War.  He was 
25 years old, married, employed, and buying a home.  He didn't want to go, but unlike others who fled to Canada or Mexico he went.  He ended up receiving an undesirable discharge, but those who fled received a presidential pardon.  He was excluded because he obeyed the law.  He does not feel he was justly treated.

3.  The applicant provides a copy of his Undesirable Discharge Certificate.

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 16 October 1968.   He completed basic combat training and was scheduled to report to Fort Ord, CA for advanced individual training on 20 January 1969, but was absent without leave (AWOL) on that date.  He remained AWOL until 3 March 1969.

3.  The applicant was found guilty by a special court-martial on:

	a.  24 April 1969, for being AWOL for 42 days; and

	b.  29 October 1970, for being AWOL for 398 days.

4.  On 3 November 1970, the applicant's commander recommended him for separation under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability) by reason of unfitness.  The commander stated the applicant received two special courts-martial for AWOL totaling 440 days. 

5.  The applicant consulted with counsel and waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement in his own behalf.

6.  The appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.

7.  On 18 December 1970, the applicant was discharged accordingly.  He completed 11 months and 18 days of total active service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows in item 26a (Non-Pay Periods Time Lost) - 20 January – 2 March 1969 and 
10 September 1969 – 13 October 1970. 

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

10.  Army Regulation 635-212 provided that an individual was subject to separation for unfitness when one or more of six conditions existed.  These included frequent incidents of a discreditable nature with civil or military authorities.  When separation 


for unfitness was warranted, an undesirable discharge under other than honorable conditions was normally considered appropriate.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  It provides in paragraph 3-7b 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.

12.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

13.  President Ford issued this proclamation on 16 September 1974.  It identified three categories of persons and permitted them to apply for a clemency discharge.  Those categories were:

	a.  civilian fugitives who were draft evaders;

	b.  members of the military who were still AWOL; and

	c.  former military members who had been discharged for desertion, AWOL or missing movement.

14.  Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial.  For those who elected to earn a clemency discharge (AWOL's and discharged members) they could be required to perform up to 24 months alternate service.  Upon successful completion a clemency discharge would be issued.  In any event, the clemency discharge did not affect the individual's underlying discharge and did not entitle him to any VA benefits.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded because he wasn't treated fairly.

2.  Under the Constitution, the President has the power to grant pardons for federal offenses.  Although the pardon signifies forgiveness for the offense, it will not expunge the record of conviction or change the nature of a discharge. 
It does not entitle him to VA benefits.  Furthermore, those who gained anything from the various programs earned it by alternative service.  There is no available evidence showing the applicant performed any alternative service.

3.  There is no evidence that applicant was treated unfairly.  He was convicted of AWOL by two separate courts-martial.  On one occasion he was AWOL for approximately 398 days, well over a year.  The Manual for Courts Martial lists the maximum punishment for being AWOL for more than 30 days as a dishonorable or bad conduct discharge, confinement for 1 year, and total forfeiture of pay. 

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

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

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)                                         AR20100016226



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ABCMR Record of Proceedings (cont)                                         AR20110013688



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