IN THE CASE OF:	  

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140016656 


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 discharge under conditions other than honorable (undesirable).

2.  The applicant states, in effect:

* in 1982 at a Milwaukee Veterans Administration (VA) discharge hearing his discharge was upgraded to honorable
* his records were never corrected to show this upgrade
* this upgrade took place in accordance with a Presidential Order from President Jimmy Carter
* President Carter ordered amnesty to be granted to Vietnam-era (and earlier) war protestors and deserters
* in that order he also directed the upgrade of discharges that were less than honorable
* the applicant applied for a VA loan and, though he did not use the loan, he was told his discharge would be upgraded
* he tried for many years to obtain a copy of his discharge and, only recently, was able to secure a copy

3.  The applicant provides two copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 



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's records were not available at the National Personnel Records Center, St Louis, MO.  His DD Form 214, however, was found and with that document there is sufficient evidence with which to address his request.

3.  The applicant enlisted in the Regular Army on 16 June 1967.  After completing initial training, he was awarded military occupational specialty 63H (Automotive Repairman).  He held the rank/grade of private/E-1 at the time of discharge.

4.  His DD Form 214 shows:

	a.  On 19 February 1968, he was discharged under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge Misconduct Fraudulent Entry, Conviction by Civil Court, Absent Without Leave (AWOL), Desertion).  The reason was conviction by a civil court and his Separation Program Designator (SPD) is 284.  

	b.  He was awarded or authorized the National Defense Service Medal.

	c.  He completed 4 months and 15 days of net active creditable service this period.  His periods of time lost were:

* 26 July to 2 September 1967
* 18 September to 2 October 1967
* 3 October to 11 October 1967
* 28 to 30 October 1967
* 31 October to 14 November 1967
* 15 November to 22 December 1967
* 27 to 29 January 1968
* 30 January to 18 February 1968

5.  Army Regulation 635-206, in effect at the time, provides administration separation guidance for enlisted personnel who have committed an act of misconduct.  This regulation addresses cases where Soldiers have been convicted by a civil court for an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) is death or confinement in excess of 1 year.  The character of service is normally under other than honorable conditions.

6.  Army Regulation 635-5 (Personnel Separations - Separation Forms), in effect at the time, defines the SPD codes used on the DD Form 214.  It states, for the SPD code 284, the authority is Army Regulation 635-206 and the reason is misconduct, convicted by a civil court during current term of active military service.

7.  On 16 September 1974, President Gerald Ford issued Presidential Proclamation 4313, followed by Executive Order 11803, wherein he established a clemency board to review certain convictions under the Military Selective Service Act and the UCMJ.  Those persons convicted under the UCMJ for Article 85 (Desertion), Article 86 (Absent without Leave), or Article 87 (Missing Movement) between 4 August 1964 to 28 March 1973 could have their cases reviewed by the clemency board and have clemency recommended.  This clemency was conditional, however, upon completion of alternative service.

8.  On 21 January 1977, President Jimmy Carter issued Presidential Proclamation 4483, followed by Executive Order 11967, wherein he granted a full and unconditional pardon to all persons who committed any offense between 4 August 1964 and 28 March 1973 in violation of the Military Selective Service Act.  Excluded were those who were convicted under the UCMJ for 
Article 85 (Desertion), Article 86 (Absent without Leave), or Article 87 (Missing Movement). 

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his undesirable discharge, asserting the Milwaukee VA upgraded his discharge to honorable in 1982 based upon an order by President Jimmy Carter.  The applicant states, in this order, President Carter granted amnesty and discharge upgrades for war protesters and deserters.  The applicant further contends, in effect, his DD Form 214 should therefore be corrected to reflect his upgrade to honorable, as granted by the VA.  

	a.  In 1974, President Gerald Ford issued a Presidential Proclamation and Executive Order establishing a clemency board to address persons who were either pending charges or convicted of violating the Military Selective Service Act as well as those who, while on active duty, had violated the UCMJ by deserting, being AWOL or missing movement.  In those cases where the clemency board recommended a discharge upgrade, there was a requirement to complete alternative service.

	b.  In 1977, President Jimmy Carter granted full amnesty to those persons who had violated the Military Selective Service Act.  Excluded were those members of the military who had been convicted of violating the UCMJ for deserting, being AWOL or missing movement.

	c.  The applicant provides no evidence his case was considered by a clemency board, nor that he fulfilled the alternative service requirement.

	d.  The applicant also provides no evidence of any actions that have been taken with regard to his discharge by the VA; but even if such evidence were offered, decisions made by the VA are not binding on the Army.

	e.  Although his DD Form 214 reflects significant periods of AWOL, the reason for separation was conviction by a civil court.  The offense for which he was convicted is not identified, but it met the regulatory criteria of either carrying a penalty of death or more than 1 year of confinement.  This civil conviction would not have fit within the parameters of either Executive Order detailed above. 

2.  The applicant's discharge packet is not available for review.  Nonetheless, there is no evidence submitted by the applicant or from any other source which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time.  The Board presumes regularity and that actions taken by the Army are administratively correct.  All evidence indicates the requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Absent any evidence to the contrary, regularity must be presumed.

3.  Given the foregoing, the evidence shows the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The available documentation clearly indicates the misconduct which led to his discharge rendered his service unsatisfactory.  Accordingly, there is insufficient basis upon which to grant the applicant's request for 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)                                         AR20140016656



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140016656



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1