BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20140019519 


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 other than honorable conditions (UOTHC) to a general discharge (GD).

2.  The applicant states, in effect, that he has a personal desire to upgrade his discharge and that his discharge should have been upgraded under President Ford's Clemency Discharge Program.
	
3.  The applicant provides no additional 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.  On 6 July 1972, the applicant enlisted in the Regular Army.  He failed to complete his initial training.
3.  On 9 May 1973, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, for being absent without leave (AWOL), from on or about 10 October 1972 to 26 January 1973 (Fort Lewis, WA) and again from on or about 5 March to 25 April 1973 (Fort Gordon, GA).

4.  On 4 May 1973, 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 under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Veterans Administration (VA)
* 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 submit a statement in his own behalf but a statement is not in the record.

5.  On 14 May 1973, the separation authority approved his request and directed that he be issued an Undesirable Discharge Certificate.  On 15 May 1973, he was discharged in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  He completed 
4 months and 12 days of total active service with 178 days of lost time.

6.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

7.  Presidential Proclamation 4313 was issued on 16 September 1974 by President 
Ford.  It identified three categories of persons and permitted them to apply for 
clemency discharge.  Those categories were:

* civilian fugitives who were draft evaders
* members of the military who were still AWOL
* former military members who had been discharged for desertion, AWOL or missing movement.

8.  Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial.  Those who elected to earn a clemency discharge (AWOL’s and discharged members) could be required to perform up to 24 months or alternate service.  Upon successful completion a clemency discharge would be issued.  (NOTE:  In any event, the clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits.)

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

	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 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.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge UOTHC to a GD.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  His record shows he was well advised and fully aware of the consequences of his decision.

3.  The available evidence does not show that he requested or received a clemency discharge under Presidential Proclamation 4313 of 16 September 1974.  In any case, a clemency discharge would not have altered the underlying reason for the undesirable discharge he received as a result of his extensive AWOL time.

4.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.  His lengthy absence rendered his service unsatisfactory.  Therefore, there is insufficient evidence to upgrade of his discharge to GD or honorable.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20140019519



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ABCMR Record of Proceedings (cont)                                         AR20140019519



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