IN THE CASE OF:

		BOARD DATE:  23 July 2013

		DOCKET NUMBER:  AR20120022880 


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, upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

	a.  He feels his discharge was too harsh and that it should have been a general discharge.  He thought his discharge was upgraded by President Carter's amnesty program.  Mohammed Ali was given amnesty for the same beliefs he had.

	b.  He did not kill anyone, steal anything, or commit any crimes.  He was a conscientious objector to the war in Vietnam.  When he told his superiors this, he began to be harassed.  They kept threatening him that he would receive orders to Vietnam.  He became so scared that he left, but he came back because he loved the Army.  He just did not believe in the Vietnam War.

	c.  He was drafted and all he wanted to do was finish his 2 years and get out.  He feels the character of his discharge was racially motivated.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 18 July 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 was inducted into the Army of the United States on 26 May 1971.  He did not complete training.

3.  His record shows:

	a.  A special court-martial adjudged on 9 September 1971 found him guilty of being absent without leave (AWOL) from 5 July to 3 August 1971.

	b.  He accepted nonjudicial (NJP) punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 21 October 1971, for being AWOL
* 14 June 1971, for failing to obey a lawful order
* 14 January 1972, for being disrespectful in language toward his superior noncommissioned officer

4.  The applicant's discharge processing documents are not available for review.  However, his record contains a DD Form 214 that shows he was administratively discharged on 16 June 1972 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, with an Undersirable Discharge Certificate.  It further shows he completed 8 months and 14 days of total active service with 129 days of time lost.

5.  There is no evidence of record and the applicant did not provide any evidence that shows his discharge was racially motivated.  There is no evidence that he raised this issue to his chain of command other any other available support agency.


6.  The applicant subsequently petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 10 August 1977, the applicant was notified that after careful consideration of his military records and all other available evidence, the ADRB determined he was properly discharged and denied his request.

7.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  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.

	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.

8.  Presidential Proclamation 4313, issued on 16 September 1974, provided for a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  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.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR 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.

DISCUSSION AND CONCLUSIONS:

1.  The specific facts and circumstances surrounding his discharge are not available.  However, his DD Form 214 shows he was administratively discharged 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.

2.  The applicant did not provide any evidence showing his discharge was racially motivated.

3.  There is no available evidence that the applicant entered and completed the clemency discharge program.

4.  The regulation governing the Board's operation requires that the discharge process be presumed to have been in accordance with applicable laws and regulations unless the applicant can provide evidence to overcome that presumption.

5.  The applicant has not shown error, injustice, or inequity for the relief he requests.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.


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 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)                                         AR20110020828



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ABCMR Record of Proceedings (cont)                                         AR20120022880



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