IN THE CASE OF:	  

		BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20140021673 


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 to general under honorable conditions.

2.  The applicant states on 16 September 1974, President Ford granted amnesty to those in the military who deserted their post while serving.  Before he went absent without leave (AWOL), he served a total of 1 year, 8 months, and 17 days of active duty. 

3.  The applicant provides 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 enlisted in the Regular Army for a 3-year term on 21 January 1972.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 36C (Lineman). 

3.  He also completed the Basic Airborne Course and was subsequently reassigned to the 1st Battalion, 319th Artillery Regiment at Fort Bragg, NC.  He was awarded or authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar. 

4.  On 30 October 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 29 September to 25 October 1972.  His punishment consisted of a reduction to the lowest enlisted grade, forfeiture of pay, and confinement in a correctional custody facility for 30 days. 

5.  On 23 February 1973, he again accepted NJP for willfully disobeying a lawful order, treating a superior noncommissioned officer with contempt, and wrongfully and unlawfully making a false statement.  His punishment consisted of confinement to a correctional custody facility for 30 days, restriction, and extra duty.  

6.  On 3 September 1973, his unit reported him in an AWOL status after failing to return from ordinary leave on 2 October 1973.  He was subsequently dropped from the rolls as a deserter.  He was apprehended by civil authorities in Hialeah, FL and returned to military control on 5 March 1974.

7.  Following his return, his chain of command preferred court-martial charges against him for one specification of AWOL from 3 September 1973 to 5 March 1974.  

8.  The complete facts and circumstances of the applicant's discharge processing are not available for review by the Board.  However, his record contains:

	a.  Special Orders Number 87, issued by Headquarters, U.S. Army School/Training Center, Fort Gordon, GA, on 2 May 1974, discharging him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, effective 7 May 1974 with an under other than honorable conditions discharge.

	b.  A DD Form 214 shows he was discharged on 7 May 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions characterization of service.  He was issued an Undesirable Discharge (UD) Certificate.  This form also shows he completed 1 year, 8 months and 17 days of net active service and he had 210 days of lost time.  He did not serve in the Republic of Vietnam or have any other foreign service.

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

10.  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.  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, a UD was considered appropriate at the time the applicant was discharged.  

	b.  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.  

11.  Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was for members of the Armed Forces who were in an unauthorized absence status or AWOL.  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 Department of Veterans Affairs.  

12.  A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as the 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains separation orders and a properly-constituted DD Form 214 that shows he was discharged on 7 May 1974 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial with an under other than honorable conditions discharge. 

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

3.  The applicant does not meet the criteria of PP 4313:

	a.  This program affected three groups of individuals, one of which was members who were in an unauthorized absence status.  Those members 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.  

	b.  The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Department of Veterans Affairs.  There is no evidence in the applicant's records and he provides none to show his discharge was considered by the Joint Alternate Service Board or that he completed an alternate service period satisfactorily.

4.  In the absence of his complete separation packet and based on the available evidence, it appears the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel, thus rendering his service unsatisfactory.  In view of the foregoing, there is insufficient evidence to grant him the requested 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)                                         AR20140021673





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ABCMR Record of Proceedings (cont)                                         AR20140021673



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