BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120003495 


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 an honorable discharge.

2.  The applicant states the President of the United States granted amnesty around 1970 and he was in a private hospital at the time.

3.  The applicant provides no 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's records show he was inducted into the Army of the United States on 18 April 1968.  He was assigned to the U.S. Army Training Brigade, Fort Jackson, SC, for basic training.  
3.  He was reported absent without leave (AWOL) from his assigned unit as follows:

* 9 - 15 June 1968
* 13 July - 28 October 1968
* 12 November 1968 - 27 January 1969

4.  On 14 February 1969, he was convicted by a special court-martial of one specification each for the above periods of AWOL.

5.  He was sentenced to a forfeiture of $73.00 pay for 3 months and to serve 
3 months in confinement. 

6.  On 6 May 1969, he was reported absent from his assigned unit and he was subsequently dropped from Army rolls.  On 26 October 1969, he was returned to military control.

7.  On 1 December 1969, he was convicted by a special court-martial of one specification of being AWOL from 6 May to 26 October 1969.  He was sentenced to reduction to private/E-1, a forfeiture of $25.00 pay for 4 months, and confinement for 5 months.  

8.  On 19 December 1969, he underwent a psychiatric evaluation.  The examining psychiatrist diagnosed him with chronic passive-aggressive personality manifested by AWOL, intentional inefficiency, obstructionism, and stubbornness.  The applicant stated he was not able to support his family on his military pay and that he had no intention of fulfilling his duty.  The psychiatrist determined the applicant had no mental or physical defects that warranted disposition through medical channels and psychiatrically cleared him for any action deemed appropriate by the command.

9.  On 30 January 1970, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  

10.  The applicant subsequently consulted with legal counsel who advised him of the basis for the contemplated separation action and of the procedures and rights available to him.  He acknowledged he understood that if he were issued an undesirable discharge under other than honorable conditions he could expect to encounter considerable prejudice in civilian life and he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He waived consideration of his case before a board of officers and elected not to submit a statement on his own behalf.

11.  On 3 February 1970, his immediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212, for unfitness with the issuance of an Undesirable Discharge Certificate.  The commander cited the applicant's repeated periods of AWOL and the two court-martial convictions as the bases for his recommendation.

12.  On 4 February 1970, his senior commander recommended approval of the discharge action, stated the applicant had no motivation for continued service, because he would not respond to counseling or rehabilitation.

13.  On 13 February 1970, the separation authority approved his separation action under the provisions of Army Regulation 635-212 for unfitness and directed the issuance of an Undesirable Discharge Certificate.

14.  On 20 February 1970, he was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under the provisions of Army Regulation 
635-212 with an Undesirable Discharge Certificate.  He completed 3 months and 9 days of net active service with 573 days of lost time due to being AWOL and in confinement.

15.  There is no evidence that shows the applicant applied for a clemency discharge or that he entered into and completed an alternate public work program.

16.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and
(6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.
18.  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 public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by two court-martial convictions for repeatedly going AWOL.  Accordingly, his immediate commander initiated separation action against him for unfitness under the provisions of Army Regulation 635-212.

2.  Presidential Proclamation 4313 program was for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  They could request a discharge for the good of the service with the understanding they would receive an undesirable discharge.  Upon completion of alternate service they would receive a clemency discharge.  There is no evidence in his record and he did not provide any evidence that shows he applied for a clemency discharge or that he entered into and completed an alternate public work program.  Regardless, this program did not issue former Soldiers an honorable or a general discharge.

3.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.

4.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general 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 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)                                         AR20120003495



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003495



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1