BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120006680 


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 an upgrade of his undesirable discharge to general under honorable conditions.

2.  The applicant states he has cancer and is seeking medical treatment through the Department of Veterans Affairs (VA).  He did more good than wrong and believes he is eligible for an upgrade of his discharge under President Carter's amnesty program.

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 was inducted into the Army of the United States on 6 June 1968.  He completed training and he was awarded military occupational specialty 63A (Mechanical Maintenance Apprentice).

3.  On 11 February 1969, he was convicted by a special court-martial of one specification of being absent without leave (AWOL).

4.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 42 (Remarks), "EM [enlisted member] IHCA [in the hands of civil authorities] 15 Jan 71.  EM tried and convicted 11 Jun 71 of Breaking and Entering (2 counts) by the District Court, Ouray County, Colorado.  EM committed to Colorado State Reformatory, Buena Vista, Colorado for a term not to exceed 10 years"; and

	b.  item 44 (Lost Time) for the following periods and reasons:

* 14-25 October 1968 (AWOL)
* 7-22 November 1968 (AWOL)
* 8-24 January 1969 (AWOL)
* 15 September-14 October 1969 (AWOL)
* 15 October 1969-5 June 1970 (dropped from the rolls (DFR))
* 6 June 1970-14 January 1971 (DFR to expiration term of service)
* 15 January-12 November 1971 (civil confinement)

5.  On 13 October 1971, he acknowledged that he had been advised by counsel of the contemplated action to separate him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)) by reason of conviction by a civil court.  In addition, he indicated he did not intend to appeal his civil conviction.  The applicant waived:

* consideration of his case by a board of officers
* personal appearance before a board of officers
* representation by military counsel or civilian counsel at his own expense
* the opportunity to submit a statement in his own behalf

6.  He further acknowledged that receiving a discharge under conditions other than honorable could affect his eligibility for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

7.  On 21 October 1971, his commander initiated separation action against him under the provisions of Army Regulation 635-206 by reason of misconduct based on his civil conviction.  On 22 October 1971, his intermediate commander recommended approval of the applicant's discharge.

8.  On an unknown date, the separation authority approved his discharge under the provisions of Army Regulation 635-206 for misconduct and directed issuance of an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 15 November 1971.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 1 month, and 26 days of total active service with 837 days of lost time.

9.  There is no evidence to show he applied for amnesty or that he was awarded a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974.

10.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford.  It identified three categories of persons and permitted them to apply for a clemency discharge.  Those categories were:

* civilian fugitives who were draft evaders
* members of the military who were still AWOL
* former military members who had been discharged for desertion, AWOL, or missing movement

12.  Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial.  Those who elected to earn a clemency discharge (AWOL's and discharged members) could be required to perform up to 24 months of alternate service.  Upon successful completion of alternate service, a clemency discharge would be issued.

13.  The military services issued the actual clemency discharges.  The clemency discharge was 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 in lieu of trial by court-martial.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  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 requests an upgrade of his undesirable discharge to a general discharge under honorable conditions under the provisions of Presidential Proclamation 4313.

2.  The evidence shows he was discharged under the provisions of Army Regulation 635-206 by reason of a civil conviction.  He was convicted by a civilian court of two counts of breaking and entering and he was sentenced to imprisonment.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and notified him of this action.  He waived all his rights and acknowledged that his discharge could affect his eligibility for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

3.  His record of misconduct is evidenced by one court-martial and four periods of AWOL totaling over 2 years.  Further, he had been AWOL for more than a year at the time of the civil offense.  Based on his record of misconduct, his discharge was appropriate.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  All requirements of law and regulations in effect at the time were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.  Therefore, he is not entitled to an upgrade of his discharge to general under honorable conditions.

5.  Although he was in an AWOL status at the time he committed his civil offense, his discharge was based on his civil conviction.  Therefore, he did not meet the criteria to be considered for a clemency discharge under Presidential Proclamation 4313.  As a matter of clarification, a clemency discharge was a neutral discharge, neither honorable nor less than honorable.  The clemency discharge did not affect the underlying discharge and would not entitle him to any benefits administered by the VA.

6.  Based on the available evidence, his request should be denied.



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)                                         AR20120006680



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ABCMR Record of Proceedings (cont)                                         AR20120006680



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