IN THE CASE OF:  	  

		BOARD DATE:  17 March 2015	  

		DOCKET NUMBER:  AR20140013802 


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.

2.  The applicant states, in effect, he completed the alternative service prescribed by Presidential Proclamation 4313 by performing duties as required in State government.  

3.  The applicant provides no additional documentary evidence.

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 inducted into the Army of the United States on 26 March 1968 at the age of 19.
3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two occasions:

* on 16 January 1969, for being absent without leave (AWOL) from 6 January 1969 to 13 January 1969
* on 14 March 1969, for failing to go to his appointed place of duty (failure to repair)

4.  While stationed at Fort Campbell, KY, he received orders for Vietnam.  He was to report to the U.S. Army Overseas Replacement Station at Fort Lewis, WA on 2 May 1969 but never arrived.

5.  His records show he was in an AWOL status on 2 May 1969, was dropped from the rolls, and on 2 February 1975 he voluntarily returned to military control.  He was assigned to the Joint Clemency Processing Center, Fort Benjamin Harrison, IN.

6.  On 4 February 1975, he reaffirmed his allegiance to the United States of America and pledged to faithfully serve 23 months alternate service.  

7.  On 4 February 1975, after having been advised by military counsel of the nature of the offenses for which he could be tried, the applicant executed an ADMINCEN Form 1966-3, in which he voluntarily requested discharge for the good of the service under the provisions of Presidential Proclamation Number 4313.  He indicated:

	a.  He understood 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 UCMJ and could lead to the imposition of a bad conduct discharge or dishonorable discharge.  He acknowledged he was making the request of his own free will, he had not been subjected to coercion, and he had been afforded the opportunity to consult with counsel and had been fully advised as to the nature of the offenses for which he could be tried and the maximum permissible punishment which could be imposed.  

	b.  He understood that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of all service benefits and VA benefits, could be deprived of his rights as a veteran under Federal and State law, and he could expect to encounter substantial prejudice in civilian life as a result of an undesirable discharge.

	c.  He understood that within 15 days of the date of receipt of the Undesirable Discharge Certificate he was required to report to his State Director of Selective Services to arrange for the performance of alternate service.  He further understood that satisfactory completion of such alternate service would be acknowledged by the issuance of a Clemency Discharge Certificate, but that this certificate would not alter his ineligibility for benefits predicated upon his military service.

8.  On 4 February 1975, the applicant was discharged under the provisions of Presidential Proclamation 4313.  His DD Form 214 (Report of Separation from Active Duty) shows he received an under other than honorable conditions discharge.  He is shown as having a total net creditable active service of 1 year, 1 month, and 8 days.  He had 324 days time lost before his normal expiration of term of service (ETS) and 1,767 days after his normal ETS.  His DD Form 214 contains an entry stating he agreed to serve 23 months alternate service pursuant to Presidential Proclamation 4313.

9.  A letter from the Selective Service System (SSS), dated 17 March 1977, certified the applicant satisfactorily completed his reconciliation service prescribed by Presidential Proclamation 4313.  His record contains a DD Form 1953A (Clemency Discharge from the Armed Forces of the United States of America), dated 17 March 1977, certifying the applicant was discharged on 4 February 1975 and recognizing the applicant satisfactorily completed alternative service pursuant to Presidential Proclamation Number 4313.

10.  A DD Form 215 (Correction to DD Form 214), dated 17 March 1977, added an entry to his DD Form 214 with an effective date of 4 February 1975.  This entry indicated he was issued a Clemency Discharge in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation 4313.

11.  In a letter, dated 8 January 1980, the applicant was notified the Army Discharge Review Board denied his request to upgrade his discharge.  

12.  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.

13.  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.

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

   a.  Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  
   
   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 applicant's record shows that he did not complete his enlistment due to 324 days of lost time prior to his expiration of his term of service.  Under the provisions of Presidential Proclamation Number 4313 he requested a discharge for the good of the service.  He was afforded the opportunity to consult with defense counsel and to voluntarily, and in writing, request separation from the Army acknowledging that he would receive a discharge under other than honorable conditions and that he would voluntarily participate in an alternative service program for no more than 24 months. 

2.  He was told his discharge would be changed to a Clemency Discharge if he performed alternative service.  He was not told his discharge would be upgraded. He performed alternative service and he was issued a Clemency Discharge.  Therefore, no error or injustice occurred.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.
Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.
4.  In view of the foregoing, there is an insufficient basis for upgrading his discharge to an honorable discharge or a general discharge under honorable conditions.

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)                                         AR20140013802





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ABCMR Record of Proceedings (cont)                                         AR20140013802



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