IN THE CASE OF:	  

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120017073 


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 general discharge to a fully honorable discharge.  

2.  The applicant states his discharge was upgraded in 1975 in accordance with Presidential Proclamation (PP) 4313.  He assumed he was entitled to all the benefits that go along with a general discharge.  He was diagnosed with prostate cancer in 2010.  In March 2011, he discovered he is not qualified for disability compensation.  He would like this corrected so he can receive compensation for having prostate cancer.  He requested he be permitted to work at a military installation to make up for the 269 days of lost time he incurred.

3.  The applicant provides:

* 2 self-authored statements
* Reference letter, dated 27 August 2012
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 18 June 2012
* General Discharge Certificate
* Letter, U.S. Army Office of the Adjutant General, dated 16 October 1978
* Presidential Pardon, dated 23 August 1975
* DD Form 214 (Report of Separation from Active Duty)
* Letter, Department of Veterans Affairs (VA), dated 23 December 2008



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 1 March 1967.  He completed basic combat and advanced individual training (AIT) and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  His DA Form 20 (Enlisted Qualification Record) shows, after completing AIT at Fort Lewis, WA, he was reported as absent without leave (AWOL) on 13 August 1967 while enroute to Fort Carson, CO.  He was dropped from the rolls (DFR) as a deserter on 12 September 1967.  He ultimately reported to Fort Carson, CO, on 5 December 1967, and he was placed in confinement until 
4 January 1968.

4.  On 5 January 1968, he was convicted by a special court-martial of one specification of being AWOL from on or about 13 August 1967 to on or about 5 December 1967 and sentenced to confinement at hard labor for 6 months.  However, the execution of the sentence was suspended until 28 June 1968, at which time, unless the suspension was sooner remitted, the sentence was to be vacated without further action.

5.  His DA Form 20 shows he was assigned to Vietnam on 7 March 1969; however, before completing this assignment, he went AWOL on 17 July 1969 and returned to military control on 16 November 1969.  

6.  His record contains a charge sheet, dated 21 November 1969, which shows court-martial charges were preferred against him for one specification of being AWOL from 17 July 1969 to 16 November 1969.

7.  On 4 December 1969, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an other than honorable discharge and issuance of an Undesirable Discharge Certificate, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, he indicated he understood that by requesting discharge, he acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 5 February 1970, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  Accordingly, he was discharged on 20 February 1970.

10.  His DD Form 214 shows he was discharged on 20 February 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, in the rank/grade of private/E-1, and he received an under other than honorable conditions characterization of service.  He completed 2 years, 2 months, and 27 days of total active service with 269 days of time lost due to AWOL and confinement.

11.  On 25 June 1974, he was issued a DD Form 215 (Correction to DD Form 214) which shows he was credited with 3 months and 17 days of foreign service and he served in Vietnam from 7 March 1969 to 23 June 1969.

12.  His record contains a letter from the Presidential Clemency Board, dated 27 August 1975, which states he had been granted a Pardon and a Clemency Discharge to replace his undesirable discharge.  This letter further informed him that the clemency discharge should be considered a neutral discharge and was neither honorable nor less than honorable.  

13.  His record contains a letter, dated 16 October 1978, issued by the Office of the Adjutant General and the Adjutant General Center, which informed him that after reviewing the conclusions of the Army Discharge Review Board, the Secretary of the Army directed his discharge be upgraded to an under honorable conditions (general) discharge.
14.  He was issued a new DD Form 214 and a DD Form 1955 (Clemency Discharge Certificate) pursuant to PP 4313.  His new DD Form 214 shows his characterization of service as under honorable conditions.

15.  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 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.

16.  Army Regulation 635-200, then in effect, set forth the basic authority for 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 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 to an individual who was discharged for the good of the Service.

	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 of record shows the applicant was charged with the commission of an offense punishable under the UCMJ 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.  He consulted with counsel and he was advised of the contemplated trial by court-martial for his offense.  Only then did he voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  His record includes two incidents of lengthy and willful unauthorized absence. 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.  Nevertheless, he was granted a clemency pardon/discharge in accordance with PP 4313.  

3.  Although he was granted a clemency discharge, the clemency discharge did not affect the underlying reason for his discharge and did not entitle the member to any benefits administered by the VA.  A Clemency Discharge is intended only to restore the civil rights lost as a result of an undesirable discharge.

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)                                         AR20120017073





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ABCMR Record of Proceedings (cont)                                         AR20120017073



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