IN THE CASE OF:	  

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130015369 


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 undesirable discharge to general (under honorable conditions). 

2.  The applicant states:

* he believes his type of discharge should have been general instead of under other than honorable conditions
* his discharge should have been under President Ford's Clemency Discharge Program, which should have allowed him to have a neutral discharge
* the Clemency Discharge Program was intended by President Ford to be a neutral discharge, not to be under honorable conditions nor under other than honorable conditions
* he was under the impression his discharge was already under general conditions
* at the time he served he was informed his discharge would be under the Presidential Clemency Program
* this would allow him to apply for Department of Veterans Affairs (VA) benefits
* he served the 2 years of the Selected Service program 

3.  The applicant provides documentation on the Clemency Discharge Program.



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 
14 September 1967.   

3.  On 21 November 1967, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 17 November 1967 to 
20 November 1967.  

4.  Records show he went AWOL on 11 March 1968.  Although it appears he was still in an AWOL status on 3 September 1968, the date he returned to military control for this AWOL period is unknown.  He went AWOL again on 
31 December 1968 and he was apprehended by civil authorities on 30 July 1974 and returned to military control.

5.  On 1 October 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313 (PP 4313), dated 16 September 1974.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He also acknowledged that he must report to his State Director of Selective Service to arrange for performance of alternate service within 15 days of the date of receipt of the Undesirable Discharge Certificate.  He indicated that he understood satisfactory completion of the alternate service would be acknowledged by the issuance of a Clemency Discharge Certificate.

6.  On 1 October 1974, he executed a Reaffirmation of Allegiance and Pledge to Complete Alternate Service and pledged to complete a period of 24 months alternate service.

7.  He was discharged with an undesirable discharge on 1 October 1974 for the good of the service under the provisions of PP 4313.  He had served a total of 
9 months and 10 days of creditable active service with 2,274 days of lost time.

8.  On 19 September 1975, he was terminated from enrollment in the Reconciliation Service Program because he did not complete his required period of alternate service pursuant to PP 4313 of 16 September 1974.

9.  There is no evidence that shows the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the 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 an individual who was discharged for the good of the Service.

11.  Army Regulation 635-200, 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.  

12.  PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals:  (1) fugitives from justice who were draft evaders; (2) members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of articles 85 (desertion), 86 (absent without leave), or 87 (missing movement) of the Uniform Code of Military Justice.  The third group could apply to a Presidential Clemency Board, which was made up of individuals appointed by the President who would establish a period of alternate service of not more than 24 months that the individual should 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.

13.  A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension).  This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) records free of any compelling reason to deny relief.  This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals.  Whether the individuals had performed alternate service was not an issue to be considered. 

14.  The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria:  wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/absent without leave in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he served the 2 years of the Selective Service program and his discharge should have been under President Ford's Clemency Discharge Program.  However, evidence shows on 19 September 1975 he was 
terminated from enrollment in the Reconciliation Service Program because he did 


not complete his required period of alternate service pursuant to PP 4313 of 
16 September 1974.

2.  He contends he wants to apply for VA benefits.  However, a discharge is not changed for the purpose of obtaining VA benefits.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  His brief record of service included one NJP and 2,274 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade of his discharge to general (under honorable conditions).

6.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20130015369





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ABCMR Record of Proceedings (cont)                                         AR20130015369



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