IN THE CASE OF:  	  

		BOARD DATE:  23 October 2014	  

		DOCKET NUMBER:  AR20140004129 


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 reconsideration of his previous request for an upgrade of his undesirable discharge (UD).

2.  As a new issue he requests, in effect, a pardon or clemency.

3.  The applicant states:

   a.  He has 1 year to file for a reconsideration.  After reviewing all the facts stated in the Army Board for Correction of Military Records (ABCMR) Docket Number AR20130000416 he realizes the technicalities for following regulations.  He agrees there are no errors or corrections to be made, but he is looking for a pardon.

   b.  He deeply apologizes for all of his foul actions while in the military.  He understands now that going absent without leave (AWOL) should not have been the answer, but for his flesh and blood that he created, who was 6 months of age and about to be thrown out in the cold, he had to take matter in his own hands.  They were not at war and they were not in training.  All his unit was doing was shining boots and the floors, cutting grass, and cleaning the offices at night.
   
   c.  As a trained paratrooper he felt these tasks were irrelevant.  He still followed orders and performed his duties.  He was a good Soldier.  He was always called to standards everyone should follow.  Having a child changed his life and he would do anything for the safety of his child as would anyone.  Anyone placing themselves in his situation will see the huge factor the human instinct being the reason why he went AWOL.  

4.  The applicant provides copies of the following:

* Newsletter pertaining to his father's heart attack
* two Standard Forms (SF) 502 (Clinical Record – Narrative Summary)
* SF 506 (Clinical Record – History-Part I)
* three Air Force Forms 565-4 (Clinical Record Cover Sheet)
* two psychiatric evaluation reports
* DA Form 8-274 (Medical Record – Physical Profile Record)
* Bachelor of Arts and Master of Arts diplomas
* California State University transcript
* Text-and-Talk Academy certificate
* four reference letters
* Korean employment certificate
* two alleged pictures of himself
* letter from the National Personnel Records Center (NPRC)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130000416 on 29 August 2013.

2.  The applicant requests a pardon or clemency.  This is considered a new argument and will be considered by the Board.

3.  His military record shows he enlisted in the Regular Army (RA) on 17 June 1968.  He was awarded military occupational specialty 11B (light weapons infantryman).  He was promoted to pay grade E-4 on 11 July 1969.

4.  He was honorably discharged on 7 December 1969 for the purpose of immediate reenlistment.  He reenlisted in the RA on 8 December 1969.

5.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on/for:

* 19 January 1970 - failing to register his privately owned vehicle
* 11 February 1970 – failing to obey a lawful order on 28 January 1970


6.  He was reported AWOL on 22 May 1970.  He was apprehended by civil authorities and returned to military control on 17 October 1972.

7.  On 18 October 1972, he voluntarily waived his right to counsel

8.  In October 1972, the Commander, Processing Company, recommended the applicant be discharged under the provisions of Army Regulation 635-206 (Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), paragraph 45b.  The commander stated the applicant was AWOL in excess of 1 year.

9.  On 6 November 1972, after consulting with counsel, the applicant acknowledged the proposed separation action.  He acknowledged that he could be furnished an under conditions other than honorable discharge and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.  

10.  Special Orders Number 326, issued by Headquarters, 1st Infantry Division and Fort Riley, KS, on 21 November 1972, discharged him accordingly.

11.  A Constructive Notice of Discharge memorandum, dated 22 November 1972, was issued to the Commander, Fort Riley, KS, due to the applicant's present AWOL status.

12.  By letter, dated 22 November 1972, the applicant was notified of his discharge under the provisions of Army Regulation 63-206, paragraph 45a.  The letter also advised that the actual notice of discharge was not given because at the time of his discharge he was in an AWOL status.

13.  A DD Form 214 shows he was discharged accordingly in pay grade E-1 on 22 November 1972.  He was credited with 964 days of time lost.  He was also credited with completing the following:

* 3 months and 11 days of net service this period
* 1 year, 9 months, and 2 days of total service

14.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

15.  Army Regulation 635-206, in effect at the time, stated that an enlisted member could be considered for discharge when the unauthorized absence had continued for more than 1 year.  An individual discharged by reason of desertion or AWOL under this section would normally be furnished a UD Certificate.  An honorable or general certificate could be furnished if the individual being discharged had been awarded a personal decoration or if warranted by the particular circumstances in a given case.  When the whereabouts of a member were unknown, discharge could be accomplished after notification of the imminent discharge action.

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

   a.  Paragraph 3-7a - 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 be clearly inappropriate.

   b.  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.  

17.  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 a UD.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered; however, they do not sufficiently mitigate his offense or support his request for an upgrade of his discharge or a pardon.  Presidential Proclamation 4313 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.  

2.  The evidence shows that upon his return from a lengthy and willful unauthorized absence, the applicant was recommended to be discharged.  He acknowledged the proposed separation action.  He again departed AWOL and was notified by letter of his discharge.  He was discharged accordingly on 22 November 1972.

3.  There is no evidence of record and he provided none to show he participated in and completed the alternate service pursuant to Presidential Proclamation 4313 for the issuance of a clemency discharge.  

4.  It is noted that participation and successful completion of the Clemency Program did not provide for an upgrade of an individual's discharge.  It simply restored civil rights that were otherwise lost had individuals not participated.

5.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20140004129





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ABCMR Record of Proceedings (cont)                                         AR20140004129



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