IN THE CASE OF:	  

		BOARD DATE:  10 January 2013

		DOCKET NUMBER:  AR20120011290 


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 under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states he applied for and was granted a pardon for his use of marijuana.  He contends that the President of the United States granted a pardon to all servicemen who were charged with the use of marijuana.

3.  The applicant provides no additional documentation.

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.  On 24 September 1973, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 16R (Vulcan Crewman).  He was subsequently assigned for duty at Fort Bragg, North Carolina.

3.  The applicant accepted the following nonjudicial punishments (NJPs):

	a.  5 August 1974: willfully disobeyed a lawful order;

	b.  26 November 1974: failed to go to his appointed place of duty and/or was absent from his place of duty on 5 separate occasions;

	c.  31 January 1975: was absent without leave (AWOL) for approximately 
2 days; and

	d.  19 May 1975: was AWOL for 5 days.

4.  A Federal Bureau of Investigation record reports that the applicant had been arrested on 30 May 1975 and charged with burglary with intent to commit rape.

5.  Special Court-Martial Orders Number 11, Fort Bragg, North Carolina, dated 
12 August 1975 show that the applicant was convicted of possession of one ounce, more or less, of marijuana and two specifications of being AWOL.

6.  The applicant's records contain a recommendation, dated 11 September 1975, by his unit commander asking that he be discharged from the military service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, due to unfitness.  The commander cited the applicant's 5 NJPs and special court-martial.

7.  The discharge packet is missing from his military records.  However, his 
DD Form 214 (Report of Separation from Active Duty) shows that he was administratively discharged on 6 November 1975, under the provisions of Army Regulation 600-200, paragraph 13-5a, due to unfitness.  His service was characterized as under other than honorable conditions.  He had completed 
1 year, 10 months, and 6 days of creditable active duty and had 97 days of lost time due to AWOL and confinement.

8.  On 11 July 1980, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.


9.  Army Regulation 635-200:

	a.  chapter 13, applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5a(1) provided for the separation of individuals for unfitness due to frequent incidents of a discreditable nature.  An Under Other Than Honorable Conditions Discharge Certificate was normally issued.

	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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

11.  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 restitution program specifically designed for former Soldiers who received less than an honorable discharge for AWOL related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, not to exceed 24 months, former members would be granted a “clemency” discharge by the President of the United States, thus restoring his or her affected civil rights.  However, the clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

12.  The Clemency Discharge is a neutral discharge, issued neither under “honorable conditions” nor under “other than honorable conditions.”  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 future considerations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to general, under honorable conditions because he was pardoned by the President of the United States.  He further contends that all servicemen charged with marijuana use were given similar pardons.
2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  There is no available evidence, and the applicant has not provided any evidence, to support his contention that he or any other Soldier received a Presidential pardon for marijuana use.  It appears that he may be confusing his situation with the provisions of Presidential Proclamation 4313, under which a person was required to serve up to 24 months of alternate service to receive a Clemency Discharge.  However, completing the requirements of the program did not provide for issuance of an Honorable or General Discharge Certificate.

4.  In view of the above, 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)                                         AR20120011290





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ABCMR Record of Proceedings (cont)                                         AR20120011290



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