IN THE CASE OF:	

		BOARD DATE:	    17 April 2014

		DOCKET NUMBER:  AR20130014827 


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 discharge to an honorable discharge.

2.  The applicant states, in effect, that he served his country with honor and spent almost 13 months in Vietnam and he was later granted a Presidential Pardon for his absence offense.  His commander failed to notify him of his brother's death until 1 September 1968 even though his brother died on 29 August 1968 which he felt was unacceptable and unprofessional.  He had a very difficult time processing what he had gone through in Vietnam and the death of his brother.

3.  The applicant provides his clemency letter, dated 28 October 1975, and clemency discharge certificate.

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 12 January 1967.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 30 June 1967 to 
25 June 1968.

3.  On 9 May 1969, he was convicted by a special court-martial of four specifications of being absent without leave (AWOL).

4.  On 20 October 1970, he was convicted by a general court-martial of three specifications of being AWOL.

5.  His DA Form 20 (Enlisted Qualification Record) shows in item 44 (Lost Time) that he was absent for the following periods and reasons:

* 6 September-10 October 1968 (AWOL)
* 22 October 1968-29 January 1969 (AWOL)
* 8-24 January 1969 (AWOL)
* 30 January 1969 (Confinement)
* 12-25 February 1969 (Confinement)
* 8-10 March 1969 (AWOL)
* 24 March-13 April 1969 (AWOL)
* 14 April-12 May 1969 (Confinement)
* 10 June-3 November 1969 (AWOL)
* 4 November 1969 (Confinement)
* 6-9 November 1969 (Confinement)
* 13 November 1969-7 July 1970 (AWOL)
* 8 July (AWOL)
* 15 July-29 September 1970 (AWOL/Dropped from the Rolls (DFR))
* 29 September-7 December 1970 (Confinement)

6.  The complete facts and circumstances concerning the applicant's discharge proceedings are not in the available records; however, on 3 December 1970, the general court-martial convening authority approved the applicant's request for excess leave without pay pending execution of his bad conduct discharge.

7.  He was discharged on 30 August 1971 in accordance with Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) by reason of court-martial.



8.  His DD Form 214 indicates he completed a total of 2 years, 7 months, and 
12 days of creditable active service with 320 days of lost time before his normal expiration of term of service and 417 days of lost time after his normal expiration of term of service.  It also shows he was issued a DD Form 259A (Bad Conduct Discharge Certificate).

9.  On 10 December 1975, his DD Form 214 was corrected to add the entry "DD 1953A Clemency Discharge issued pursuant to Presidential Proclamation No 4313."

10.  On 30 December 1975, he was advised that he had been awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1974.  He was granted a full and unconditional pardon and Clemency Discharge to replace his less than honorable discharge.  This pardon restored any federal civil rights he lost upon his criminal conviction for his absence offense and advised the applicant that he could apply to the Army Discharge Review Board (ADRB) for review and possible change to his discharge.

11.  There is no evidence he applied to the ADRB to upgrade his discharge. 

12.  Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford.  It identified three categories of persons and permitted them to apply for a clemency discharge.  Those categories were:

* civilian fugitives who were draft evaders
* members of the military who were still AWOL
* former military members who had been discharged for desertion, AWOL, or missing movement

13.  The 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.  The ADRB adopted the policy that a clemency discharge would be considered by a board in its deliberations, but that the discharge per se did not automatically require relief be granted.

14.  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.  The clemency discharge, like a Presidential pardon, is an expression by the Chief Executive that the stigma of a bad record has been removed, and that the bearer of a clemency discharge should no longer be discriminated against in his future consideration.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  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 have been clearly inappropriate.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to an honorable discharge because he received a clemency discharge under Presidential Proclamation 4313.

2.  His record is void of the complete specific facts and circumstances surrounding his discharge processing; however, his record of misconduct is evidenced by two court-martials and numerous periods of AWOL totaling over 2 years.  His DD Form 214 shows the applicant was discharged under the provisions of Army Regulation 635-200, by reason of court-martial, and that he received a bad conduct discharge.  This separation document carries with it a presumption of Government regularity in the separation process.

3.  Based on his record of misconduct, his discharge was appropriate.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he has not established a basis to justify upgrading his discharge to either an honorable or a general discharge.

4.  By regulation, a clemency discharge does not impact the underlying discharge received by the applicant.  

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130014827





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ABCMR Record of Proceedings (cont)                                         AR20130014827



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