MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            6 January l999 
	DOCKET NUMBER:   AC98-12704
				   AR1998000706

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Richard H. Allen 		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Mark D. Manning		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, upgrade of his undesirable discharge (UD) to a general discharge (GD) or an honorable discharge (HD).

APPLICANT STATES:  In essence, that he received a Clemency Discharge (under the provisions of Presidential Proclamation (PP) 4313), and his UD should have been upgraded at the completion of his alternate service.  He submits copies of his documentation showing completion of his alternate service and the Clemency Discharge.  He has been denied veterans benefits because of the error or injustice by the Government. 

EVIDENCE OF RECORD:  The applicant's military records are incomplete, but information available shows:  

He enlisted in the Regular Army on 30 October l967 for 3 years.  His enlistment option was for training in Army Career Group 36 (Signal Wire Maintenance) and parachute training, which he appears to have completed.  

The record of the applicant’s service in the Republic of Vietnam (RVN) is very limited.  It appears that he was assigned to Battery B, 2nd Battalion (Airmobile), l9th Artillery, 1st Cavalry Division, and served in the RVN for l year from 16 April l968 through 13 April l969.  He received credit for award of the Air Medal, the Vietnam Service Medal, the RVN Campaign Medal w/60 Device and the RVN Cross of Gallantry w/Palm(Unit Award).  He also appears to have been advanced to pay grade E-4 while in the RVN.  

Upon return to the United States he was assigned to Company C, Special Troops, Fort Dix, New Jersey.  On 28 July l969, he received nonjudicial punishment (NJP) under the provisions of Article l5, Uniform Code of Military Justice, for missing two mandatory training classes.  His punishment included extra duty and restriction for l4 days, the forfeiture of $62.00 pay and reduction to pay grade E-3.  In response to his appeal of the NJP on l August l969, his reduction to pay grade E-3 was suspended for 90 days.  There is no evidence that his reduction was ever consummated.

He went into an absent without leave (AWOL) status on or about l December l969 from Ft. Dix and remained absent until he voluntarily returned to military control at Fort Benjamin, Harrison, Indiana on 8 January l975.  His return to military control was in connection with the Presidential Clemency Program established under the provisions of PP 4313.

At the time of his return to military control, he swore allegiance to the United States, agreed to perform  a period of public service in connection with the Presidential Clemency Program, requested to be discharged for the good of the service and to accept a UD.  

In connection with the request for discharge for the good of the service, paragraph 4 of the request, dated l0 January l975, stated, in pertinent part:  “I understand that within l5 days of the date of receipt of the Undesirable Discharge Certificate, I must report to my State Director of Selective Service to arrange for performance of alternate service.  I further understand that satisfactory completion of such alternate service will be acknowledged by issuance of a Clemency Discharge Certificate.  I realize, however, that such certificate will not alter my ineligibility for any benefits predicated upon my military service.”

The applicant was discharged from the Army on l0 January l975, with a UD, under the provisions of PP 4313.  He was administratively reduced to pay grade E-l and was credited with 2 years, l month and 10 days active service, 329 days lost time prior to the expiration of his normal term of duty (ETS) based on his original 3-year enlistment, and l528 days lost time after his original ETS of 
29 October l970.  His separation document indicates that he had agreed to 
7 months alternative service.  Besides the awards he received while in the RVN, he was credited with award of the National Defense Service Medal.

On 27 August l975, the Selective Service certified to the Department of the Army that the applicant had satisfactorily completed his 7-month period of alternate service.  

On 22 August l975 (sic), a correction (DD Form 215) was issued to the applicant's original DD Form 2l4 (Report of Separation from Active Duty) certifying that a DD Form 1953A (Clemency Discharge) was issued to the applicant.  The applicant submitted a copy of this document showing an effective date of l0 January l975, the original date of his discharge.

Presidential Proclamation 4313 was issued on September l6, l974.  It provided, in pertinent part, that individuals absent from the military for a long period of time, primarily in connection with the war in the RVN, could avail themselves of a clemency program.  If they returned to military control, swore allegiance again to the United States and agreed to perform a period of alternate service under the supervision of the Selective Service, a Clemency Discharge would be given in the name of the President.  In essence, this was a neutral discharge and a pardon issued by the President of the United States.  However, the individual would normally receive a UD from the military service.  Service discharge review boards and correction boards are not empowered to change the Clemency Discharge, but may review the underlying circumstances of the discharge.

Determination of entitlement to DVA benefits, to include educational and medical benefits, is not within the purview of this Board or the Secretary of the Army.  The DVA establishes its regulations governing such entitlements in accordance with Federal statute applicable to that Agency.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The discharge proceedings were conducted in accordance with law and the provisions of Presidential Proclamation 4313 in effect at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

3.  The accomplishments of the  applicant during his period of  service are noted by the Board.  However, the Board did not find this service, to include a l-year tour of duty in the RVN, to be so meritorious as to overcome the applicant’s period of AWOL in excess of 1800 days.

4.  There are no automatic provisions for upgrade of his discharge.  In fact, the statement he signed at the time he requested discharge clearly stated that he knew that issuance of the Clemency Discharge would not alter his ineligibility for any benefits based upon his military service.

5.  Further, determination for entitlement to veteran benefits rests with the DVA, not the Secretary of the respective military service.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__TDH__   __LLS__  __MDM__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC9812704/AR1988000706-	
SUFFIX		
RECON		
DATE BOARDED	19990106	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19750110	
DISCHARGE AUTHORITY	PP4313	
DISCHARGE REASON	A0000	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Loren G. Harrell	
ISSUES         1.	144.00	
2.	A0113	
3.	A9207	
4.	A9445	
5.		
6.