IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20120001036 


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 (UD) be upgraded as agreed by Army personnel at Fort Benjamin Harrison, IN.

2.  He states after being absent without leave (AWOL), he turned himself in to Naval officers serving at the U.S. Naval Air Station, Corpus Christi, TX, and then he flew to Fort Benjamin Harrison in the winter of 1975 to complete his processing.  A U.S. Army official offered him alternative service in accordance with Presidential Proclamation Number 4313, dated 16 September 1974.

3.  He adds that Army Judge Advocate General officers in Indiana informed him of the alternative service program.  The agreement was if he completed 5 years of alternative service with the city of Corpus Christi Water Department, the Army would upgrade his discharge.

4.  The applicant received a letter in 1980 from an Army official congratulating him on his completion of his 5 years of alternative service and encouraged him to apply for an upgrade of his discharge.  He submitted his request through a county veterans' service office and has never heard anything from the Army.

5.  He emphasizes that not only did he complete 5 years with the city of Corpus Christi, he also retired from the Corpus Christi municipal government after 31 years of service.

6.  He did not provide any additional evidence.

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 12 August 1970.

3.  A DA Form 188 (Extract Copy of Morning Report) shows that he was AWOL on 4 January 1971 while attending initial entry training at Fort Knox, KY.

4.  His record also contains a memorandum from the U.S. Army Enlisted Records Center, Fort Benjamin Harrison, IN, dated 18 January 1975.  This document shows he returned to military control on 13 January 1975.

5.  On 14 January 1975, he completed an ADMINCEN Form 1966-5 (Reaffirmation of Allegiance and Pledge to Complete Alternate Service) which shows he admitted he voluntarily was AWOL from his military unit without proper authority on 21 January 1971.  This form also shows he recognized that his obligations as a citizen remained unfulfilled and he was ready to serve in whatever alternative service his country prescribed for a period of 24 months.

6.  The applicant also completed an ADMINCEN Form 1966-3 (Enlisted Statement – Request for Discharge for the Good of the Service) on 14 January 1975.

	a.  The applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974.  He acknowledged he understood that his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the Uniform Code of Military Justice.  His actions could also lead to the imposition of a bad conduct or dishonorable discharge.

	b.  He acknowledged he was making his request of his own free will and that prior to completing the request he had been afforded the opportunity to consult with military counsel.  He acknowledged that he had been fully advised by counsel as to the nature of the offenses for which he may be tried and the maximum permissible punishment which may be imposed.

	c.  He understood he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged he had been advised and understood the adverse nature of such a discharge and the possible consequences thereof.

	d.  He acknowledged that as a result of the issuance of such a discharge, he would be deprived of all service benefits, he would be ineligible for all benefits administered by the Veteran's Administration (VA), and he may be deprived of his rights and benefits as a veteran under both Federal and State laws.

	e.  He further acknowledged that within 15 days of receipt of the Undesirable Discharge Certificate he must report to his State Director of Selective Service to arrange for performance of alternate service.

	f.  He further acknowledged he understood that satisfactory completion of such alternate service will be acknowledged by issuance of a Clemency Discharge Certificate.  He acknowledged, however, that such a certificate would not alter his eligibility for any benefits predicated upon his military service.

7.  Additional facts and circumstances concerning the applicant's discharge proceedings are not in the available records.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 14 January 1975 under the provisions of Presidential Proclamation 4313, dated 16 September 1974.  His characterization of service was listed as under other than honorable conditions with issuance of an Undesirable Discharge Certificate.  He had 4 months and 24 days of creditable service; 583 days of lost time before normal expiration of term of service (ETS); and 882 days of lost time after his normal ETS.

8.  A letter from the Selective Service System (SSS), dated 2 March 1997, indicates the applicant satisfactorily completed the assigned period of alternate service in the Reconciliation Service Program and was entitled to consideration for a clemency discharge.  He was furnished with an SSS Form RS-2 (Certificate of Completion).

9.  His record contains a letter, dated 4 April 1977, indicating the applicant had completed his alternate service pursuant to Presidential Proclamation 4313, dated 16 September 1974.  It shows he was issued a DD Form 1953A (Clemency Discharge) and a DD Form 215 (Correction to DD Form 214).  He was further advised that he could apply to the Army Discharge Review Board (ADRB) for review and possible upgrade of his discharge.  However, there is no evidence that the applicant applied to the ADRB to upgrade his discharge.

10.  The DD Form 215 he was issued added the entry, "DD Form 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313" to item 27 (Remarks) of his DD Form 214.

11.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and 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.

12.  Alternate service was to be performed under the supervision of the SSS.  When the period of alternate service was completed satisfactorily, the SSS would notify the individual's former military service.  The military services issued the actual clemency discharges.  The clemency discharge is a neutral discharge, neither honorable nor less than honorable.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge for the good of the service in lieu of trial by court-martial.

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provided that a member who had 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 the charges had been preferred.  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.

	b.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service, but the separation authority could have directed a general discharge or an honorable discharge if such were merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would have been improper.

	c.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	d.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had a total of 1,465 days of lost time due to AWOL.  He was charged with an offense for which a bad conduct or dishonorable discharge could have been imposed.  He opted to submit a request for discharge for the good of the service and for participation in the alternate service program.

2.  Under the provisions of Presidential Proclamation 4313, the applicant was required to serve up to 24 months of alternate service, which evidence shows he completed.  However, completing the requirements of the program provided for a clemency discharge, not a general or honorable discharge.

3.  The applicant was granted a clemency discharge under Presidential Proclamation 4313 which restored his civil rights but did not change the underlying discharge.  His clemency discharge, which was considered a "neutral" discharge, did not entitle him to any benefits administered by the VA and did not require an upgrade of the underlying discharge in order to secure such benefits.

4.  The character of the applicant's discharge is commensurate with his overall record of military service, and there is no justification for upgrading his discharge.

5.  He has not provided any compelling evidence or convincing argument to further mitigate his serious AWOL offenses.  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 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)                                         AR20120001036



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ABCMR Record of Proceedings (cont)                                         AR20120001036



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