IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110015337 


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 to a general discharge or that his service be uncharacterized.

2.  The applicant states that he was drafted and fell into the wrong crowd.  He goes on to state that he did not want to go to Vietnam and so he went absent without leave (AWOL).

3.  The applicant provides a copy of his 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 born on 14 February 1950 and was residing in Tallulah, Louisiana when he was inducted in Jackson, Mississippi on 20 January 1971 and was transferred to Fort Polk, Louisiana to undergo his basic training.

3.  On 12 March 1971 nonjudicial punishment was imposed against him for being AWOL from 28 February to 7 March 1971.  On 22 March 1971 he again went AWOL and remained absent in desertion.  The applicant’s commander immediately dispatched a letter to the applicant’s mother advising her that she should encourage the applicant to turn himself in.

4.  On 25 November 1974 a letter was dispatched to the applicant at his mother’s address informing him that by Presidential Proclamation No. 4313, 16 September 1974, the President of the United States established a program of clemency for individuals who absented themselves without leave, were dropped from the rolls or missed movement from 4 August 1964 – 23 March 1973 and who had no other offenses.  He was further advised that to participate in the program he had to agree to participate, he had to agree to reaffirm his allegiance to the United States and he had to agree to perform alternate service for up to 24 months.
  
5.  The applicant was also advised that he had to physically present himself to Fort Benjamin Harrison, that he would be afforded counsel and the opportunity to request discharge for the good of the service.  He was further advised that he would receive an undesirable discharge and that he would be ineligible to receive benefits administered by the Veterans Administration; however, once he completed his alternate service he would be issued a clemency discharge which would remove his status as a fugitive and his criminal liability under military law.

6.  The applicant contacted officials at Fort Benjamin Harrison on 30 December 1974 and was advised of the procedures necessary to participate in the program. He was also advised to report to Fort Harrison on or about 17 January 1975.  

7.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records show that he returned to military control at Fort Harrison on 14 January 1975 and he declined to submit a statement in his own behalf.  The Clemency Board determined that he was required to perform 24 months of alternate service and he was discharged under other than honorable conditions on 16 January 1975 under the provisions of Presidential Proclamation 4313.  He had served 2 months and 5 days of active service and had 1,382 days of lost time due to AWOL.  He did not complete his basic combat training and there is no evidence to suggest that he had been notified that he was being transferred to Vietnam.    

8.  There is no evidence in the available records to show that the applicant completed his alternate service or that he was issued a Clemency Discharge.

9.  There is also no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  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 the 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 Department of Veterans Affairs.  While there is no change in benefit status per se, a recipient may apply to the Department of Veterans Affairs for benefits.

11.  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 in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.  There have never been any provisions for an automatic upgrade of such discharges.

12.  Paragraph 3-7 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 

13.  That regulation also provides, in pertinent part, that entry level separations or uncharacterized discharges are given to individuals who separate prior to completing 180 days of military service or when the discharge action was initiated within 180 days of service.  This type of discharge does not attempt to characterize service as good or bad.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, his discharge under other than honorable conditions 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, the Board finds no basis to warrant an upgrade of his discharge.

4.  The applicant’s contention that his discharge should be upgraded to a general discharge or that his service should be uncharacterized has been noted and found to lack merit, especially when considering the extensive length of his absence and lack of mitigating circumstances.  The applicant had not completed his basic training and was not notified that he was being sent to Vietnam, therefore his explanation is not accepted and his service simply does not rise to the level of a general discharge.

5.  Likewise, he went AWOL for an extensive length of time and was not eligible for an entry level separation solely because he did not desire to fulfill his   
obligation.  Accordingly, there appears to be no basis to grant his 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)                                         AR20110015337





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ABCMR Record of Proceedings (cont)                                         AR20110015337



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