BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140020231 


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 he was young and had just gotten married.  They were expecting a child and he now realizes he did not make a proper decision in his judgment. 

3.  The applicant provides a printout of Proclamation 4483. 

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 show he was born in July 1954.  He enlisted in the Regular Army for a period of 3 years at 17 years and 4 months of age on 30 November 1971.  He was assigned to Company E, 2nd Battalion, 2nd Basic Combat Training Brigade, U.S. Army Training Center, Fort Leonard Wood, MO, for training.  

3.  On 13 January 1972, he departed his training unit in an absent without leave (AWOL) status.  He was apprehended by civil authorities in Coffeyville, KS, and transferred to military control at the Personnel Control Facility, Fort Riley, KS, on 20 January 1972.  

4.  On 22 January 1972, he again departed in an AWOL status and on that same day he was dropped from the Army rolls as a deserter.  He was ultimately apprehended by civil authorities in Tulsa, OK, and returned to military control at Fort Sill, OK, on or about 10 May 1972. 

5.  On 11 May 1972, court-martial charges were preferred against him for two specifications of AWOL from 13 to 20 January 1972 and 22 January to 10 May 1972. 

6.  On 15 May 1972, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant acknowledged:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever
* he understood that if the discharge request were approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he acknowledged he understood he could expect to encounter substantial prejudice in civilian life

8.  He submitted a personal statement wherein he stated: 

* he thought it was a good idea to join the Army because his step dad and mother did not like him hanging around the house with no school or a job
* he got married to a real nice girl during Christmas leave and she was pregnant but he still loved her 
* when he returned from leave he felt he did not like the Army and he really never did; so, he went AWOL
* he wanted out of the Army so he could support his wife and be with her all the time; he did not like the Army at all
* he would accept his undesirable discharge or any kind of discharge just to get out of the Army; he can't seem to adapt to military life and he just wanted out

9.  On 8 June 1972, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade, if applicable, and issuance of an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 8 June 1972. 

10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 1 month and 15 days of active service and he had 146 days of lost time. 

11.  There is no indication he petitioned the Army Discharge Review Board (ADRB) for a review of his discharge within that board's 15-year statute of limitations.

12.  He submitted a printout of Proclamation 4483 – Granting pardon for violations of the Selective Service Act from 4 August 1964 to 28 March 1973.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at a time.

	a.  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.

	b.  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.

14.  Presidential Proclamation (PP) 4313, issued on 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions 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.

15.  A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension).  This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) whose records were free of any compelling reason to deny relief.  This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals.  Whether the individuals had performed alternate service was not an issue to be considered.  

16.  The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria:  wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with PP 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.

17.  Public Law 95-126 provided in pertinent part for a "Relook Program."  All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures.

18.  Proclamation 4483--Granting pardon for violations of the Selective Service Act, August 4, 1964, to March 28, 1973, is a Presidential Proclamation signed by President Carter to grant a full, complete and unconditional pardon to: (1) all persons who may have committed any offense between 4 August 1964 and 28 March 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated there under; and (2) all persons heretofore convicted, irrespective of the date of conviction, of any offense committed between 4 August 1964 and 28 March 1973 in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, restoring to them full political, civil and other rights.  This pardon does not apply to the following who are specifically excluded there from: (1) All persons convicted of or who may have committed any offense in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, involving force or violence; and (2) All persons convicted of or who may have committed any offense in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, in connection with duties or responsibilities arising out of employment as agents, officers or employees of the Military Selective Service system.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  While it is true the applicant was 17 years and 6 months of age at the time he went AWOL, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations or that his two periods of AWOL were the result of his age (immaturity).  In fact in his statement, he clearly stated he did not want to be in the Army.  

3.  A Presidential Proclamation is a statement issued by a President on a matter of public policy.  This is not to be confused with Executive Order.  The President's Proclamation does not have the force of law, unless authorized by Congress.  If Congress were to pass an act, which would take effect upon the happening of a contingent event, and subsequently the President proclaimed that the event happened the proclamation would have the force of law.  In any case, Presidential Proclamation 4483 refers to the issuance by President Carter of a pardon to all Americans convicted of or still sought for draft violations during the Vietnam War.  The applicant enlisted in the Regular Army; he was not inducted under the Selective Service Act.  Therefore, his type of administrative discharge in lieu of trial by court-martial does not fit in this program or fall within the criteria for this program. 

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is insufficient evidence to support an upgrade his discharge to an honorable or a general discharge.


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)                                         AR20140020231



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ABCMR Record of Proceedings (cont)                                         AR20140020231



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