IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120011643 


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 upgrade of his undesirable discharge.

2.  The applicant states he received a full pardon on 23 August 1975. 

3.  The applicant provides:

* Full Pardon Certificate
* DD Form 258A (Undesirable Discharge Certificate)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 enlisted in the Regular Army on 23 April 1971 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 95B (military police).  

3.  Records show he went absent without leave (AWOL) from:

* 11 February 1973 to 9 September 1973
* 15 October 1973 to 6 November 1973

4.  His record is void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial, on 6 November 1973, while in absentia, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He had served a total of 1 year, 10 months, and 20 days of creditable active service with 234 days of time lost.

5.  The applicant provided a certificate, dated 23 August 1975, from the President of the United States (President Ford), which states he was granted a full pardon and was awarded a clemency discharge issued pursuant to Presidential Proclamation 4313 (PP 4313) of 16 September 1974.

6.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

8.  PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals:  (1) fugitives from justice who were draft evaders; (2) members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of articles 85 (desertion), 86 (absent without leave), or 87 (missing movement) of the Uniform Code of Military Justice.  The third group could apply to a Presidential Clemency Board, which was made up of individuals appointed by the President who would establish a period of alternate service of not more than 24 months that the individual should perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a clemency discharge.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.

9.  Army Regulation 635-200, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 635-200, 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 evidence of record shows the applicant was discharged with an undesirable discharge on 6 November 1973.  Evidence of record shows he was awarded a clemency discharge in 1975 pursuant to PP 4313 of 16 September 1974.  The governing Proclamation states the clemency discharge did not affect the underlying discharge.

2.  It appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.



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)                                         AR20120011643





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011643



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1