IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120013127 


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 to an honorable discharge.

2.  The applicant states he would have stayed in the Army for 20 years and served in any war he thought to be right and just, but he could not support the Vietnam War and he told his commander that at the time.  He goes on to state he believes he should receive an honorable discharge because he loves his country and the Army, but believes that one must do what one thinks is right.  He also states that thousands of others refused to fight and were pardoned by the President of the United States.

3.  The applicant provides no additional documents with his application.

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 in Charlotte, NC on 3 February 1966 and he was transferred to Fort Jackson, SC to undergo his training.  He completed his basic training and remained at Fort Jackson to undergo training as an infantry indirect fire crewman.

3.  The applicant went absent without leave (AWOL) on 31 May 1966 and he remained absent in desertion until he returned to military control on
16 September 1966.  He again went AWOL on 18 September 1966 and he remained absent until he was apprehended by civil authorities in Connelly Springs, NC on 29 October 1966.  He was returned to military control at Fort Jackson.

4.  The complete facts and circumstances surrounding the applicant's administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Winston Salem, NC on
29 April 1971.  However, his record shows he submitted a voluntary request for discharge on 1 November 1966 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial on
1 November 1966. 

5.  The appropriate authority (a major general) approved his request on 21 November 1966 and directed the applicant be furnished an Undesirable Discharge Certificate.

6.  Accordingly, on 5 December 1966, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with a character of service of under other than honorable conditions.  He completed
5 months and 5 days of active service with 151 days of time lost due to AWOL and civil confinement.

7.  There is no evidence in the available records showing that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals.  These groups were fugitives from justice who were draft evaders; members of the Armed Forces who were in an unauthorized absence status; and prior members of the Armed Forces who had been discharged with a punitive discharge for violations of Articles 85, 86, or 87 of the Uniform Code of 


Military Justice.  The last group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military and members of the Reserve components) who would make a determination regarding the performance of alternate service.  That board was authorized to award a Clemency Discharge without the performance of alternate service (excusal from alternate service).  The dates of eligibility for consideration under this proclamation for those already discharged from the military service were 4 August 1964 to 28 March 1973, inclusive.  Alternate service was to be performed under the supervision of the Selective Service System.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service.  The military services issued the actual Clemency Discharges.  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.  A Clemency Discharge does not affect the underlying discharge and does not entitle the individual to any benefits administered by the Department of Veterans Affairs.  While there is no change in benefit status per se, a recipient may apply to the VA for benefits.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  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.  
	c.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative discharge was accomplished in accordance with applicable laws and regulations with no indication of any of the applicant's rights being violated.  Accordingly, his undesirable discharge appropriately reflects the character of his service.

2.  It is also noted that by allowing the applicant to administratively separate under the provisions of Army Regulation 635-200, chapter 10, he avoided being tried by court-martial and having a felony offense in his record.  Given his undistinguished record of service and his extensive absences, there is no basis on which to upgrade his discharge to either honorable or general.

3.  Additionally, the applicant's contention that his love of his country and the Army warrants an upgrade of his discharge has been noted; however, that in itself is not sufficient to warrant an upgrade of his undesirable discharge.

4.  While the sincerity of the applicant's claim that he can only support a war he believes to be just and right is not in doubt, it is noted that every person who serves in the Armed Forces of the United States takes an oath to support and defend the Constitution of the United States and to obey the orders of those appointed over him or her.  The applicant failed to honor his oath of office in any of the many ways that were potentially available to him.

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)                                         AR20120013127



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ABCMR Record of Proceedings (cont)                                         AR20120013127



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