IN THE CASE OF:	  

		BOARD DATE:	  2 October 2014

		DOCKET NUMBER:  AR20140002110 


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, the issuance of a new DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the information listed on his DD Form 215 (Correction to DD Form 214).

2.  The applicant states:

* item 30 (Remarks) of his DD Form 214 should show the entry "DD Form 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation 4313"
* the correction to his DD Form 214 was never made

3.  The applicant provides a copy of his DD Form 214 and DD Form 215.

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.  On 10 January 1968, the applicant enlisted in the Regular Army.

3.  He served in the Republic of Vietnam during the period 8 November 1968 through 28 July 1969.

4.  His accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, as follows:

* on 22 July 1968, for unlawfully striking another Soldier on and about the head with his fist
* on 8 March 1968, for leaving his appointed place of duty without authority
* on 2 March 1969, for being absent without leave (AWOL) on 1 March 1969
* on 27 March 1969, for disobeying a lawful order
* on 1 May 1969, for willfully discharging a firearm at the main gate

5.  On 8 July 1969, the applicant underwent a psychiatric evaluation and was found mentally responsible.  He was cleared for any administrative or judicial action deemed appropriate by his command, to include discharge in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

6.  Headquarters, 8th Transportation Group Special Court-Martial Orders Number 104, dated 14 July 1969, shows the applicant pled guilty and was found guilty of sleeping on post and using disrespectful language to a senior noncommissioned officer.  He also pled not guilty and was found not guilty of failure to go to his appointed place of duty.  He was sentenced a forfeiture of $73.00 pay for 6 months, confinement for 6 months, and reduction from private first class/E-3 to private/E-1.  His sentence to hard labor was suspended until 26 December 1969.

7.  On 14 July 1969, the applicant was notified of his pending separation from the service for unfitness under the provisions of Army Regulation 635-212 with an undesirable discharge.

8.  On 15 July 1969, after consulting with counsel, the applicant waived consideration of his case by a board of officers, a personal appearance before a board of officers, and representation by counsel.  He elected not to submit a statement in his own behalf.  He acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further acknowledged that if an undesirable discharge under conditions other than honorable were issued, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  On 16 July 1969, the applicant's unit commander initiated a recommendation to discharge him from the service for unfitness under the provisions of Army Regulation 635-212 and the issuance of an Undesirable Discharge Certificate.  He cited the applicant's habits and traits of character manifested by repeated commissions of major and minor offenses and that the applicant would not respond to corrective action.  The commander also cited acts of misconduct which resulted in the applicant's conviction by a special court-martial.

10.  On 20 July 1969, the applicant's intermediate commander recommended the applicant's discharge for unfitness under the provisions of Army Regulation 
635-212 and the issuance of an Undesirable Discharge Certificate.

11.  On 27 July 1969, the appropriate separation authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate.

12.  On 31 July 1969, the applicant was discharged accordingly.  He completed 1 year, 6 months, and 21 days of creditable active service.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 with his service characterized as under conditions other than honorable.

13.  On 18 March 1976, the applicant was awarded a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974.  He was issued a DD Form 1953A (Clemency Discharge Certificate) along with a DD Form 215 amending his DD Form 214.

14.  On 1 June 1982, the Army Discharge Review Board (ADRB) denied the applicant's request for a change in the character of service and reason for discharge.

15.  On 13 December 2007, the ABCMR denied the applicant's request for an upgrade of his discharge.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness or unsuitability.  Paragraph 6a(1) provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Paragraph 6a(4) provided that members who have established a pattern for shirking were subject to separation for unfitness.
17.  Presidential Proclamation 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status.  These individuals were afforded an opportunity to return to military control and elect a discharge under other than honorable conditions under Presidential Proclamation 4313 or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals were required to 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 reason for discharge and did not entitle the individual to any benefits administered by the Veterans Administration.

18.  Army Regulation 635-5 (Separation Documents), in effect at the time, established policy for preparing and distributing the DD Form 214.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  This regulation states corrections to the DD Form 214 will be accomplished by the issuance of a DD Form 215.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's discharge was amended to a clemency discharge in 1976 under Presidential Proclamation 4314, this clemency discharge did not affect the underlying reason for his discharge and did not change the characterization of his service.

2.  The applicant appealed to both the ADRB and ABCMR for an upgrade of his discharge; however, both boards denied his request.  He was issued a DD Form 215 showing his clemency discharge.

3.  The governing regulation directed the issuance of a DD Form 215 for corrections made to the DD Form 214.

4.  The applicant was properly issued a DD Form 215 in 1976.  In view of the above, there is no evidentiary basis for granting the requested relief.



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)                                         AR20140002110



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ABCMR Record of Proceedings (cont)                                         AR20140002110



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