IN THE CASE OF:	  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120012532 


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, in effect, an upgrade of his under less than honorable conditions discharge.

2.  The applicant states, in effect, his DD Form 214 (Report of Separation From Active Duty) and DD Form 1953A (Clemency Discharge) should be corrected to reflect an upgrade of his discharge because he completed the President's Clemency Program successfully.  Further, the actions which caused his discharge were due to his combat history.

3.  The applicant provides:

* Letter, Selective Service System, dated 14 September 1976
* Certificate of Completion, dated 14 September 1976
* DD Form 214
* DD Form 215 (Correction To DD Form 214)
* Letter, National Personnel Records Center (NRPC), dated 1 June 2012

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 3 August 1970 and held military occupational specialty 12B (Combat Engineer).  He was assigned to Vietnam on 
9 January 1971.  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  His records indicate while serving in Vietnam, he was authorized ordinary leave in the continental United States.  He did not return to his unit once his leave concluded.

4.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 7 September 1971 to 14 November 1975 and was dropped from the rolls as a deserter on 16 October 1971.

5.  His record contains a letter from the U.S. Army Enlisted Records Center, Fort Benjamin Harris, IN, dated 5 November 1975, which states his application for clemency from the Armed Forces had been received prior to the expiration date of 31 March 1975.  A review of his military records indicated he was eligible to participate in the Department of Defense portion of the Presidential Clemency Program.  Eligibility for the clemency program required he return to military control in person by reporting to Fort Benjamin Harris, IN, no later than midnight on 15 March 1975.

6.  His record contains an undated form showing he returned to military control on 14 November 1975.  This form certifies that the Army Alternative Service Board established by Presidential Proclamation 4313 had reviewed his official military records.  The board determined the applicant would be required to serve 6 months of alternative service.

7.  On 19 December 1975, he completed a Reaffirmation of Allegiance and Pledge to Complete Alternate Service and acknowledged that he voluntarily absented himself from his military unit without being properly authorized.  He stated that he was ready to serve in whatever alternate service his country could prescribe for him and pledged to complete 6 months of service.

8.  On 19 December 1975, he was reduced to pay grade E-1 and discharged for the good of the service by reason of a willful and persistent unauthorized absence pursuant to Presidential Proclamation 4313.  His DD Form 214 shows he was credited with completion of 1 year, 6 months, and 24 days of net active service and had 1,023 days of lost time.

9.  His record contains a certificate of completion issued by the Selective Service System on 14 September 1976.  This certificate certifies he completed the prescribed reconciliation service in accordance with his agreement.  

10.  His record contains a letter, issued by the Director, Personnel Services, Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, on 29 September 1976, that states he had completed his alternative service pursuant to Presidential Proclamation 4313.  As such, his DD Form 1953A and DD Form 215 were enclosed as attachments to the letter.  In addition, the letter advised him he could apply to the Army Discharge Review Board (ADRB) for review and a possible upgrade of his discharge.

11.  On 17 May 1982, the ADRB determined he had been properly discharged and denied his request to upgrade his discharge.

12.  Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313   or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would 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 Veterans Administration (now named the Department of Veterans Affairs (VA)).  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.

13.  Army Regulation 635-200 (Enlisted Separations), then in effect, set forth the basic authority for separation of enlisted personnel.  

	a.  Paragraph 3-7a stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.   Paragraph 3-7b states 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 shows that upon his return from a lengthy and willful unauthorized absence, the applicant agreed to be discharged and complete alternate service.  He completed the program and was accordingly issued a 
DD Form 1953A and DD Form 215.  

2.  It should be noted that participation and successful completion of the Clemency Program did not provide for an upgrade of an individual's discharge.  It simply restored the civil rights that would have been lost had the individual not participated.

3.  His records show he was AWOL from 7 September 1971 to 14 November 1975.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

4.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20120012532





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ABCMR Record of Proceedings (cont)                                         AR20120012532



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