IN THE CASE OF:	  

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130008829 


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 the following:

* in effect, his upgraded discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP) be affirmed so he may obtain Department of Veterans Affairs (VA) benefits
* an upgrade of his dishonorable discharge to a general discharge

2.  The applicant states:

   a.  He was granted clemency by President Nixon under the Alternate Service Program.  He received the clemency documents, but they were destroyed in a house fire.  He was incarcerated from 27 December 1971 to 24 March 1972.  He would like a copy of his clemency letter and the DD Form 215 (Correction to 
DD Form 214, Report of Separation from Active Duty) showing his clemency.  He also requests an upgrade of his dishonorable discharge to a general discharge.  He is seeking medical benefits as his health is deteriorating.

   b.  He is enclosing an excerpt from the Report to the Congress - The Clemency Program of 1974 which he participated and served in with the U.S. Forestry Division for 24 months.  He also performed community service hours at Lake Placid, FL, Highlands County, where he coached girls' softball.  He was young and did not understand the importance of requesting his honorable discharge after completing the Clemency Program.  Over the years he has lost or destroyed his clemency documents he had received from the U.S. Congress.

3.  The applicant provides:

* a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* a completed VA Form 21-4138 (Statement in Support of Claim)
* a letter from the Army Review Boards Agency
* an excerpt of the Report to Congress - The Clemency Program of 1974

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 (RA), in pay grade E-1, on 14 June 1965.  He completed training and was awarded military occupational specialty 11B (light weapons infantryman).  He served in Korea from 31 October 1965 through 22 September 1966.  He was promoted to pay grade E-4 on 4 June 1966.  

3.  He was honorably discharged on 23 March 1967 for the purpose of immediate reenlistment.  He was issued a DD Form 214 crediting him with completion of 1 year, 9 months, and 10 days of net active service with no time lost.  

4.  He reenlisted in the RA on 24 March 1967 for 6 years.  He served in Vietnam from 21 October 1967 through an unknown date.  

5.  On 28 April 1968, he was convicted by a special court-martial of two specifications of willfully disobeying lawful orders on 1 April 1968 and one specification of cowardly conduct on 2 April 1968.  He was sentenced to a reduction to pay grade E-1, 6 months confinement at hard labor, and a forfeiture of pay.  

6.  On 8 May 1968, the convening authority approved the sentence and he was reduced to pay grade E-1.

7.  On 21 July 1968, the convening authority suspended the unexecuted portion of the sentence to confinement until 27 October 1968.

8.  He was again advanced to pay grade E-2 on 27 October 1968.

9.  On 5 March 1969, the convening authority suspended the unexecuted portion of the sentence to confinement until 8 September 1969. 

10.  On 22 January 1969, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 4 November 1968 to 4 January 1969.  He was sentenced to reduction to pay grade E-1, confinement for 6 months, and a forfeiture of pay. 

11.  On 22 January 1969, the convening authority approved the sentence and he was reduced to pay grade E-1. 

12.  On 17 June 1969, the convening authority ordered the suspended sentence to confinement duly executed and he was placed in confinement.

13.  On 15 April 1970, he was convicted by a special court-martial of two specifications of being AWOL from 8 October to 17 November 1969 and from 26 November 1969 to 8 March 1970 and five specifications of wrongfully having in his possession with intent to deceive certain instruments purported to be a 
DD Form 2A (Identification Card), DD Form 345 (Armed Forces Liberty Pass), MACV Form 5 (Currency Control Plate), MACV Form 333 (Ration Card), and In Country Travel Authorization letter on or about 8 March 1970.  He was sentenced to 6 months confinement and a forfeiture of pay for 6 months.

14.  On 14 May 1970, the convening authority approved the sentence for confinement and a forfeiture of pay for 4 months and ordered it duly executed.

15.  On 7 April 1971, the convening authority suspended the unexecuted portion of sentence to confinement.

16.  On 17 June 1971, he was convicted by a general court-martial of two specifications of being AWOL from 6 May to 15 October 1970 and from 16 December 1970 to 15 February 1971.  He was sentenced to a dishonorable discharge, a forfeiture of pay, and confinement at hard labor for 10 months.

17.  On 22 July 1971, the convening authority approved the sentence and ordered it duty executed.

18.  On 27 August 1971, the convening authority ordered the suspended sentence, unless sooner vacated, remitted without further notice.

19.  On 29 September 1971, the U.S. Army Court of Military Review affirmed the findings of guilty and the dishonorable discharge. 

20.  On 22 October 1971, the Secretary of the Army denied him clemency and restoration to duty.  

21.  On 29 November 1971, the U.S. Court of Military Appeals denied his appeal for a review of his case.

22.  On 30 November 1971, the convening authority affirmed his dishonorable discharge and ordered it duly executed.

23.  Accordingly, he was discharged in pay grade E-1 on 27 December 1971, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 11-1a, with a dishonorable discharge.  He was credited with completion of 1 year, 5 months, and 26 days of net active service and 1,144 days of time lost.

24.  On 9 March 1977, The Adjutant General, U.S. Army, issued a DD Form 215 amending his DD Form 214 to show the entry, "DD Form 1953A (Clemency Discharge) issued in Recognition of Satisfactory Completion of Alternate Service Pursuant to Presidential Proclamation Number 4313."

25.  There is no evidence he requested an appearance and final determination prior to 9 March 1977 before the Army Discharge Review Board (ADRB).

26.  In a letter, dated 15 April 1977, from the Director, Personnel Services, he was advised that they had been informed by the Department of Justice he had completed his alternate service pursuant to Presidential Proclamation Number 4313.  He was provided a DD Form 1953A and DD Form 215.

27.  He provided copies of the following:

   a.  A letter from the Army Review Boards Agency, dated 12 April 2013, wherein he was advised he must apply to the ABCMR for consideration as the ADRB did not have the authority to process applications received after 15 years from the date of discharge.
   
   
   b.  An excerpt of the Report to the Congress, The Clemency Program of 1974, which describes the role and responsibility of the Department of Justice, Department of Defense, and the Selected Service System in carrying out the Clemency Program of 1974 for the return of Vietnam era draft evaders and military deserters.      

28.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 11-1b - an enlisted person would be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the sentence affirmed before it could be duly executed.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  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 inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

29.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a court-martial conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

30.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of 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.  Under this proclamation, 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.  Alternate service was to be performed under the supervision of the Selective Service System.  The individual was responsible for finding a job that met the requirements of the program.  He would obtain the approval of his State Selective Service officials regarding the job and reports would be furnished periodically as to how he was performing.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual's former military service and the military issued the actual clemency discharge.  A clemency discharge did not restore veterans' benefits; rather, it restored Federal and, in most instances, State civil rights which might 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 characterization of service would be retained.

31.  On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual.

32.  In October 1978, Public Law 95-126 was enacted.  This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review.

33.  The Board has been advised in similar cases that the VA often requires validation or affirmation of SDRP upgrades by the military service corrections boards in order to authorize the service member VA benefits.

DISCUSSION AND CONCLUSIONS:

1.  With respect to affirmation of the applicant's upgraded discharge under the DOD SDRP so he may qualify for VA benefits:

   a.  The evidence of record shows he was convicted by three special courts-martial for being AWOL and disobeying orders.  He was convicted by a general court-martial of two periods of being AWOL and having in his possession purported documents with intent to deceive.  He was sentenced to a dishonorable discharge.  His sentence was affirmed and he was discharged accordingly on 27 December 1971.

   b.  In March 1977, a DD Form 215 was issued in Recognition of Satisfactory Completion of Alternate Service Pursuant to Presidential Proclamation Number 4313.  There is no evidence of record and he provided none to show he petitioned the ADRB to upgrade his discharge.  

2.  With respect to an upgrade of his dishonorable discharge to an honorable discharge, the evidence of record shows he was discharged pursuant to the sentence of a general court-martial and was issued a dishonorable discharge after the findings and sentence were affirmed.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

3.  There is also no evidence that his treatment was unjust or inequitable.  He has provided no evidence or argument sufficient to show his discharge should be upgraded.  He was properly discharged and the discharge appropriately characterized the misconduct for which he was convicted.

4.  The Board is empowered to change the characterization of service and the narrative reason for discharge if clemency is determined to be appropriate.  The applicant's record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.  Given the above and after a thorough review of the applicant’s record and the serious nature of his offenses, there is no basis for clemency.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to any further correction of his 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 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)                                         AR20130008829





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008829



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1