IN THE CASE OF:	  

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120007615 


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 (UD) to an honorable discharge (HD).

2.  The applicant states he was previously issued a clemency discharge in recognition of satisfactory completion of alternative service pursuant to Presidential Proclamation (PP) Number (No) 4313.

3.  The applicant provides:

* Two letters, dated 30 November 1976 and 13 January 1977
* SSS Form RS-2 (Selective Service System Certificate of Completion)
* DD Form 1953A (Clemency Discharge)
* Selective Service System certificate
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214)

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 military records show he enlisted in the Regular Army (RA) on 14 January 1970.  His DA Form 20 (Enlisted Qualification Record) shows during his initial entry training, he was reported absent without leave (AWOL) on 24 February 1970 and dropped from the rolls (DFR) on 25 March 1970.

3.  His Military Personnel Records Jacket (MPRJ) contains a DA Form 3545 (Deserter Wanted by the Armed Forces) that was initially prepared on 26 March 1970.  It shows the applicant departed AWOL on 24 February 1970, he was DFR on 25 March 1970, and returned to military control on 23 January 1975.

4.  The applicant's MPRJ includes a discharge request completed on 24 January 1975, which shows that after consulting with legal counsel and being advised of the nature of the offenses for which he could be tried, the maximum permissible punishment that could be imposed, the possible consequences of a UD, the nature and effect of his pledge to perform alternative service, and of the procedures and rights available to him, he voluntarily requested discharge for the good of the service under the provisions of PP No 4313.

5.  In his request for discharge, he acknowledged his understanding that his absence was characterized as willful and persistent unauthorized absence which rendered him triable under the Uniform Code of Military Justice (UCMJ) and could have led to the imposition of a bad conduct or dishonorable discharge.  He further acknowledged his understanding that he would be discharged under other than honorable conditions, and would receive a UD, and that he was advised of and understood the adverse nature of such a discharge and the possible consequences thereof.  He further confirmed his understanding that as a result of the issue of a UD, he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the Veterans Administration (VA), and that he would be deprived of his rights and benefits as a veteran under both Federal and State laws, and finally that he could expect to encounter substantial prejudice in civilian life because of a UD.

6.  Additional facts and circumstances concerning the applicant’s discharge proceedings are not in the available records.  However, his DD Form 214 shows he was discharged on 24 January 1975, under the provisions of PP No 4313, with a character of service of under other than honorable conditions and issued a UD Discharge Certificate.
7.  The applicant’s DD Form 214 also shows he had completed a total of 1 month and 13 days of creditable active military service and accrued 1,793 days of time lost.  Item 27 (Remarks) indicates he had agreed to serve 20 months of alternate service.

8.  The applicant's MPRJ contains a Selective Service System letter, dated 30 November 1976, which confirms he completed the assigned period of alternate service in the Reconciliation Service Program entitling him to consideration of a clemency discharge.  It also includes a DD Form 215 which confirms he was issued a Clemency Discharge Certificate in recognition of satisfactory completion of alternate service pursuant PP No 4313.

9.  On 16 April 1979, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence determined he had been properly and equitably discharged.  The ADRB voted to deny his request for a change to the characterization of his service and/or to the reason of his separation.

10.  The PP No 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.  The ADRB adopted the policy that a clemency discharge would be considered by a board in its deliberations, but that the discharge per se did not automatically require relief be granted

11.  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.  The clemency discharge, like a Presidential pardon, is an expression by the Chief Executive that the stigma of a bad record has been removed, and that the bearer of a clemency discharge should no longer be discriminated against in his future consideration.

12.  Army Regulation 635-200 (Active Duty Enlisted Administration Separations) governs the policies and procedures for the separation of enlisted personnel.
	a.  Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   b.  Paragraph 3-7b, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to a HD because he received a clemency discharge under PP No 4313.

2.  The applicant’s record is void of the complete specific facts and circumstances surrounding his discharge processing; however, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of his discharge.  This document confirms the applicant was discharged under the provisions of PP No 4313, for the good of the service, and that he received a UD.  This separation document carries with it a presumption of Government regularity in the separation process.

3.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable by a punitive discharge under the UCMJ. Procedurally, and the record confirms that after the applicant consulted with defense counsel, he voluntarily initiated a request for separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge. Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  By regulation, a clemency discharge does not impact the underlying UD received by the applicant.  The UD the applicant received was normal and appropriate under the regulatory guidance in effect at the time and under the current regulatory guidance.

5.  In view of the foregoing, the applicant's 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 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)                                         AR20120007615



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ABCMR Record of Proceedings (cont)                                         AR20120007615



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