IN THE CASE OF:  

		BOARD DATE:  23 October 2014	  

		DOCKET NUMBER:  AR20140004415 


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 that his undesirable discharge be upgraded to a more favorable discharge.

2.  The applicant states he believes that coming back under President Nixon’s order “that all would be forgiven” should be reason enough to upgrade his discharge.

3.  The applicant provides a one-page statement explaining his application and a third-party letter of support.

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 31 January 1969 for a period of 2 years and was single at the time of his enlistment.  He completed his basic training at Fort Bragg, North Carolina and was transferred to Fort Gordon, Georgia to undergo his advanced individual training (AIT). 

3.  On 21 May 1969, nonjudicial punishment (NJP) was imposed against him for two specifications of failure to go to his place of duty.

4.  On 9 July 1969, he appeared before a special court-martial on charges of theft; however, the charges were dismissed on grounds of improper charges.  The applicant was released from his AIT and was transferred to Fort Leonard Wood, Missouri to undergo AIT in another specialty. 

5.  On 31 January 1970, he was convicted by a special court-martial of being AWOL from 11 August to 26 November 1969.  He received no punishment.

6. On 2 February 1970, NJP was imposed against him for failure to go to his place of duty. 

7.  On 12 March 1970, NJP was imposed against him for being absent without leave (AWOL) from 23 to 26 February 1970. 

8.  On 20 May 1970, he was convicted by a special court-martial of stealing money from three Soldiers.  He was sentenced to confinement at hard labor for 3 months, reduction to the pay grade of E-1, and a forfeiture of pay.

9.  The applicant again went AWOL on 24 August 1970 and remained absent in desertion until he was returned to military control at Fort Benjamin Harrison, Indiana on 29 October 1974 and was assigned to the Joint Clemency Processing Center.

10.  On 6 November 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Presidential Proclamation 4313 dated 16 September 1974.  He also acknowledged that he understood that he would receive an Undesirable Discharge Certificate and that he must report to the State Director of Selective Service within 15 days to arrange for performance of alternate service and that satisfactory completion of such alternate service would result in issuance of a Clemency Discharge Certificate.

11.  The Clemency Board determined that he was required to perform 24 months of alternate service and he was discharged under other than honorable conditions on 6 November 1974 under the provisions of Presidential Proclamation 4313.  He had served 1 year and 7 days of active service and had 1,679 days of lost time due to AWOL and confinement.   There is no evidence that he completed his alternate service or that he was issued a Clemency Discharge Certificate.

12.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals.  These groups were fugitives from justice who were draft evaders; members of the Armed Forces who were in an unauthorized absence status; and prior members of the Armed Forces who had been discharged with a punitive discharge for violations of Articles 85, 86, or 87 of the Uniform Code of Military Justice.  The last group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military and members of the Reserve components) who would make a determination regarding the performance of alternate service.  That board was authorized to award a Clemency Discharge without the performance of alternate service (excusal from alternate service).  The dates of eligibility for consideration under this proclamation for those already discharged from the military service were 4 August 1964 to 28 March 1973, inclusive.  Alternate service was to be performed under the supervision of the Selective Service System.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual’s former military service.  The military services issued the actual Clemency Discharges.  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.  A Clemency Discharge does not affect the underlying discharge and does not entitle the individual to any benefits administered by the Department of Veterans Affairs.  While there is no change in benefit status per se, a recipient may apply to the Department of Veterans Affairs for benefits.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation in effect at the time that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.  There have never been any provisions for an automatic upgrade of such discharges.

15.  Paragraph 3-7 also 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative discharge under Presidential Proclamation 4313 was accomplished in accordance with applicable laws and regulations with no indication of any of the applicant’s rights being violated.

2.  Accordingly, his discharge under other than honorable conditions appropriately reflects the character of his service.

3.  By allowing the applicant to administratively separate under Presidential Proclamation 4313 he avoided being tried by court-martial and having a felony offense on his records.  Given his undistinguished record of service and his extensive absences, the Board finds no basis to warrant an upgrade of his discharge.

4.  The applicant’s contention that his discharge should be upgraded because he participated in the clemency program offered under Presidential Proclamation 4313 has been noted and found to lack merit, especially when considering the extensive length of his absence and lack of mitigating circumstances.  The applicant had not completed his training and there is no evidence that he completed his alternate service.  His service simply does not rise to the level of a general discharge.

5.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20140004415





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ABCMR Record of Proceedings (cont)                                         AR20140004415



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