IN THE CASE OF:	  

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140010982 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

	a.  A lot happened which caused him to go absent without leave (AWOL).  It all started at home; his father was an alcoholic and his mother had to work two jobs.  

	b.  His cousin joined the Marines and returned home excited.  He too was excited and he wanted to join.

	c.  His two older brothers were drafted.  He tried to join the Marines and then the Army but he was too young so the recruiter turned him down.  

	d.  Another cousin decided to join so he tried again with another recruiter.  He was told that his mother had to sign the paperwork and that he had to wait until the first of the year.  In January 1967, he was finally permitted to join.

	e.  During and after his military occupational specialty training, he was stationed in the southern states.  It was during the time Martin Luther King, Jr. was marching and was killed.  

	f.  He is a short person and he has a natural dark complexion.  After going to the beach, he would get real dark.  He was always treated differently.  On two separate occasions, he was discriminated against.  He was treated badly because of his uniform and because of his color.  

	g.  His two brothers were injured and sent home.  One was shot in the stomach and the other had his leg blown off.  His brothers died within 5 to 
10 years after their time in the service.  

	h.  Being as young as he was, he got scared and he was also upset by the way people were treating him.  One day, he realized what he had done and he was scared to be labeled a deserter.  There is no excuse for what he did.

	i.  He served the community service and he received a clemency discharge.  He went to college and he became the student council vice president and he was partially responsible for writing the school's constitution.  He was also active in a school club called Office Education Association where he was the treasurer, Sergeant at Arms.  He became State president of the club at the time the club had 8,000 members throughout the State of New Mexico.  He also ran for the city council in his home town.  

	j.  He worked in the hospitality industry for over 20 years with duties from dishwashing to Assistant Property Controller.  His last position was as Food and Beverage Director.  He also owned and operated a food processing company for 10 years.  

	k.  He is not proud of what happened in the 1960s but he thinks that he should not serve a life sentence for what he did as a teenager.  He asks for the upgrade of his discharge to honorable so he can die in peace.  

3.  The applicant provides a New Mexico Office Education Association's personnel directory and five newspaper articles.  

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 born on 5 May 1949.  He enlisted in the Regular Army on 
4 January 1967.  

3.  He accepted nonjudicial punishment (NJP) on 12 December 1967 for failing to go at the time prescribed to his appointed place of duty and on 16 May 1968 for fleeing apprehension by the military police.  

4.  A DD Form 553 (Absentee Wanted by the Armed Forces) indicates he departed AWOL on 18 June 1968.  

5.  His records contain a letter addressed to him, dated 11 December 1974, indicating he had contacted Army authorities and inquired about participating in the program established by Presidential Proclamation 4313 of 16 September 1974.  The letter also indicates he was eligible to participate in the program. 

6.  On 6 January 1975, he completed an ADMINCEN Form 1966-3 (Enlisted Statement – Request for Discharge for the Good of the Service) in which:

	a.  He voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974.  He acknowledged he understood that his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the Uniform Code of Military Justice.  His actions could also lead to the imposition of a bad conduct or dishonorable discharge.

	b.  He acknowledged he was making his request of his own free will and that prior to completing the request he had been afforded the opportunity to consult with military counsel.  He acknowledged that he had been fully advised by counsel as to the nature of the offenses for which he may be tried and the maximum permissible punishment which may be imposed.

	c.  He acknowledged he understood he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged he had been advised and understood the adverse nature of such a discharge and the possible consequences thereof.

	d.  He acknowledged that as a result of the issuance of such a discharge, he would be deprived of all service benefits, he would be ineligible for all benefits administered by the Veteran's Administration (VA), and he may be deprived of his rights and benefits as a veteran under both Federal and State laws.
	e.  He also acknowledged that within 15 days of receipt of the Undesirable Discharge Certificate he must report to his State Director of Selective Service to arrange for performance of alternate service.

	f.  He further acknowledged he understood that satisfactory completion of such alternate service will be acknowledged by issuance of a Clemency Discharge Certificate.  He acknowledged, however, that such a certificate would not alter his eligibility for any benefits predicated upon his military service.

7.  Additional facts and circumstances concerning his discharge proceedings are not in the available records; however, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 6 January 1975 under the provisions of Presidential Proclamation 4313, dated 16 September 1974.  His characterization of service is listed as under other than honorable conditions with issuance of an Undesirable Discharge Certificate.  He completed 1 year, 5 months, and 16 days of creditable service and he accrued 560 days of lost time before his normal expiration of term of service (ETS) and 1827 days of lost time after his normal ETS.

8.  There is no evidence in his available records indicating that racial harassment was the proximate cause of his lengthy AWOL offense. 

9.  A letter from the Selective Service System (SSS), dated 28 January 1977, indicates he satisfactorily completed the assigned period of alternate service in the Reconciliation Service Program and that he was entitled to consideration for a clemency discharge.  He was furnished with an SSS Form RS-2 (Certificate of Completion).

10.  His record contains a letter, dated 28 February 1977, indicating he had completed his alternate service pursuant to Presidential Proclamation 4313, dated 16 September 1974.  It shows he was issued a DD Form 1953A (Clemency Discharge) and a DD Form 215 (Correction to DD Form 214).  He was further advised that he could apply to the Army Discharge Review Board (ADRB) for review and possible upgrade of his discharge.  However, there is no evidence indicating he applied to the ADRB to upgrade his discharge.

11.  The DD Form 215 he was issued added the entry, "DD Form 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313" to item 27 (Remarks) of his DD Form 214.

12.  He provided a New Mexico Office Education Association's personnel directory that shows he was the State President for the organization during the period 1979-80 and five newspaper articles outlining some of his positive contributions to society after his discharge from the Army.

13.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.

14.  Alternate service was to be performed under the supervision of the SSS.  When the period of alternate service was completed satisfactorily, the SSS would notify the individual's former military service.  The military services issued the actual clemency discharges.  The clemency discharge is a neutral discharge, neither honorable nor less than honorable.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to benefits administered by the VA.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge for the good of the service in lieu of trial by court-martial.

15.  Army Regulation 635-200 (Personnel Separations-Enlisted Separations), then in effect, set forth the basic authority for separation of enlisted personnel.  

	a.  Paragraph 3-7a stated 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 states 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 evidence shows the applicant accrued a total of 2,387 days of lost time due to AWOL.  He opted to submit a request for discharge for the good of the service and for participation in the alternate service program in lieu of trial by court-martial.  
2.  Under the provisions of Presidential Proclamation 4313, he was required to serve up to 24 months of alternate service, which evidence shows he completed. However, completing the requirements of the program provided for a clemency discharge, not a general or honorable characterization of service.

3.  His record of indiscipline included NJP on two occasions and 2,387 days of lost time due to AWOL.  Based on the seriousness of his misconduct, and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to either a general under honorable conditions discharge or an honorable discharge.

4.  He contends that he was young at the time; however, age is not a mitigating factor for his misconduct.  He completed initial entry training which shows he was mature enough to serve.  Additionally, there is no evidence that indicates he was any less mature than other Soldier of the same age who successfully completed their military service.

5.  His argument and his positive post-service conduct were noted; however, he has failed to show that his discharge processing and/or the characterization of service he received were in error or unjust.  As a result, there is no basis for granting his 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 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)                                         AR20140010982



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ABCMR Record of Proceedings (cont)                                         AR20140010982



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