IN THE CASE OF:  	  

		BOARD DATE:  12 February 2015	  

		DOCKET NUMBER:  AR20140013548 


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 (UOTHC) discharge.

2.  The applicant states:

	a.  He enlisted in the Army at age 19 to better himself.  During basic training, he received a letter from his girlfriend stating she was pregnant with his child and that she was being put out of her grandfather's home.  He asked his commanding officer for an emergency pass to go home, and his request was denied.  He waited until after basic training to ask for another pass to go home.  At that time his girlfriend was homeless.  He tried to get help for her and asked his mother to sign for him to marry her.  His mother said no.  His girlfriend needed him, so he decided to go absent without leave (AWOL).  

	b.  When he returned to the Army, he was locked up.  He requested a hardship discharge, but his request was denied.  He also asked to complete his time with the Army, and he was offered another way out.  He was asked to perform 6 months of civil service, which he did, and he was offered a full pardon by President Ford.  

	c.  His girlfriend became his wife.  Two of their children served honorably in the military.  He worked in and retired from law enforcement as a sergeant in the Maryland State Division of Corrections.  He also holds a concealed handgun permit from the State of Maryland.
3.  The applicant provides a copy of his Clemency Discharge Certificate, a copy of his DD Form 214 (Report of Separation from Active Duty), a self-authored letter, a Certificate of Live Birth, and a Certificate of Appreciation from the Veterans of Foreign Wars of the United States.

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 29 January 1970, the applicant enlisted in the Regular Army at 19 years of age.  He did not complete initial entry training.  

3.  On 13 March 1970, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.
  
4.  On 12 October 1970, he was charged with being AWOL for the following periods:

* 18 May 1970 to 23 June 1970
* 21 July 1970 to 7 October 1970

5.  On 14 October 1970, the applicant consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the UCMJ and of the possible effects of a UOTHC discharge if a request for discharge for the good of the service in lieu of trial by court-martial were approved.  

6.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.


   a.  He acknowledged that:

* he understood he could be discharged UOTHC and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of all service benefits and be ineligible for all Veterans' Administration (VA) benefits
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

b.  He indicated he would not submit statements in his own behalf.

7.  The applicant's request was approved and on 2 November 1970, he was discharged with his service characterized as UOTHC.   

8.  On 24 October 1973, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.   He stated that he:

* had difficulties at home so he went AWOL
* was about to return to duty when he was apprehended by the Federal
Bureau of Investigation
* was now married with 2 kids and wanted to go to school

9.  On 23 January 1974, the ADRB conducted a hearing on behalf of the applicant, in which he requested an upgrade to his characterization of service to a General Discharge (GD).  However, his request was denied.

10.  However, on 27 April 1976, applicant was notified he had been awarded a Conditional Clemency Discharge.  Therefore, he was issued a DD Form 215 (Correction to DD Form 214) changing item 30 (Remarks) to read:  "DD 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No. 4313 of 16 September 1974."

11.  On 7 March 1977, the applicant reapplied to the ADRB for an upgrade of his discharge.  

12.  On 27 July 1977, after careful consideration of his request, the ADRB determined that the applicant was properly discharged, and his request for a change in the type and nature of his discharge was denied.


13.  On 16 September 1974, Presidential Proclamation 4313 was issued by President Ford affecting three groups of individuals.  One group was members of the Armed Forces who were in an AWOL status.  These individuals were afforded an opportunity to return to military control and elect either a UOTHC discharge under PP 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 would 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.  

14.  Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel.

   a.  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 Under Other Than Honorable Conditions Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

   b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  Paragraph 3-7b provides that a GD 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 available evidence does not support the applicant's request for an upgrade of his UOTHC discharge. 

2.  The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He was well advised of the consequences of his request, and he declined to submit a statement on his own behalf.  All requirements of law and regulation were met and his rights were fully protected throughout the discharge process.  Although he received a Clemency Discharge Certificate under the provisions of PP 4313, this did not affect the underlying discharge. 

3.  Post-service conduct is not normally a reason for upgrading a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Although the applicant states he originally went AWOL to take care of and provide housing for his pregnant girlfriend, this does not mitigate the seriousness of the offense due to the length of his second AWOL and the fact that he was apprehended rather than turning himself into the appropriate authorities.  Therefore, due to this misconduct, his service was unsatisfactory and there is an insufficient basis upon which to upgrade his discharge to a GD or an HD.    

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)                                         AR20140013548



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013548



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1