IN THE CASE OF:	  

		BOARD DATE:	 6 March 2014 

		DOCKET NUMBER:  AR20130012223 


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 his under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states President Nixon pardoned him in 1973.  He served his country for 2 years in Germany, Vietnam, Fort Riley, and Fort Knox.  He is now 60 years old and needs his general discharge.

3.  The applicant provides no additional evidence.

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 15 September 1969.

3.  Evidence contained in the applicant's records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: 

* 6 October 1970, for failing to stop at a military road block
* 12 March 1971, for being absent from his unit from 26 February to 
	2 March 1971

4.  On 28 May 1971, he pled guilty and was found guilty by a summary court-martial of a specification of absence without leave (AWOL) from 17 April to 5 May 1971.  

5.  The applicant's record contains a DA Form 20 (Enlisted Qualification Record), wherein item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) shows he was AWOL for the period 1 through 30 June 1971; was dropped from the rolls from 1 July through 5 September 1971; and confined from “8 July” through 30 September 1971. 

6.  On 8 September 1971, court-martial charges were preferred against him for being AWOL from 1 June to on or about 6 September 1971.

7.  On 8 September 1971, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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, the applicant acknowledged he was making the request of his own free will and he had not been subjected to any coercion whatsoever.  He understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected to submit a statement in his own behalf in which he stated if he did not receive a discharge he would keep trying until he received one.
9.  On 14, 27, and 28 September 1971, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.  His senior commander noted in light of the applicant's previous record and present attitude further rehabilitation was impractical.

10.  On 1 October 1971, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's voluntary 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.  He directed the applicant be reduced to the lowest enlisted grade, if applicable, and furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 1 October 1971.

11.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed              1 year, 5 months, and 19 days of total active service with 208 days of time lost.  This form and his records contain no evidence the applicant performed any foreign service let alone service in Germany and the Republic of Vietnam. 

12.  The applicant subsequently petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 20 May 1974, the applicant was notified that the ADRB reviewed his discharge but found it proper and equitable.  As such, the ADRB denied his petition for an upgrade of his discharge.  

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge is normally considered appropriate.

	b.  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.

14.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his discharge upgraded to general under honorable conditions was carefully considered and determined to lack merit.

2.  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.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that may have jeopardized his rights. Furthermore, his overall military service was tarnished by various types of misconduct including instances of NJP, a court-martial, and multiple instances of AWOL.

4.  The applicant’s record is void of a clemency discharge and the facts and circumstances surrounding his discharge processing clearly reflect his overall record of service.  By regulation, a clemency discharge does not impact the underlying undesirable discharge received by the applicant.  The undesirable discharge the applicant received was normal and appropriate under the regulatory guidance in effect at the time and under the current regulatory guidance.

5.  His records contain no evidence and he provides no evidence to support his contention that he received a Presidential Pardon.  In addition, there is insufficient evidence to show the applicant satisfactorily completed an assigned period of alternate service and was entitled to consideration for a clemency discharge.

6.  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 also renders his service unsatisfactory.  Therefore, he is not entitled to 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 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)                                         AR20130012223





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ABCMR Record of Proceedings (cont)                                         AR20130012223



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