MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 May 2000                  
	DOCKET NUMBER:   AR1999029067

	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. Carl W.S. Chun		Director	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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, that his general discharge (GD), previously upgraded under the Department of Defense Special Discharge Review Program (DoD-SDRP), be affirmed so as to entitle him to Department of Veterans Affairs (VA) benefits.

APPLICANT STATES:  In essence, that his undesirable discharge (UD) was upgraded to a GD and he still does not have the results of the review.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army for 3 years on 27 February 1969.  On 10 March 1969, he completed basic training at Fort Jackson, South Carolina.  He was then reassigned to Fort Belvoir, Virginia, where he began advanced individual training (AIT) in military occupational specialty (MOS) 11D10 (Armor Reconstruction Specialist).

On 9 July 1969, a DA Form 188 (Morning Report) listed the applicant as absent without leave (AWOL) while still in AIT.  He was returned to military control on 
15 August 1969.  An inquiry revealed no reasons for his actions.

On 26 August 1969, he was transferred to Fort George G. Meade, Maryland, for disposition of the AWOL charges.  On 8 September 1969, he was convicted by a special court-martial of being AWOL from 7 July to 15 August 1969.  He was sentenced to hard labor without confinement for 30 days. 

On 13 October 1969, he was reassigned to Fort Knox, Kentucky, in order to complete his AIT.

On 16 November 1969, while in training at Fort Knox, he was listed as being AWOL.  He was returned to military control on 27 February 1970 and was placed in pre-trial confinement at Fort Meade, on 10 March 1970.  He declined to make a statement at that time.  

On 12 March 1970, the applicant was charged with AWOL from 16 November 1969 to 27 February 1970.  

On 13 March 1970, the applicant consulted with legal counsel, requested discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court martial.  He not did submit a statement in his own behalf.  On 
24 March 1970, he was medically cleared for separation,

On 14 April 1970, the separation authority approved the separation and the applicant was discharged on the same date, with a UD, under the provisions of Army Regulation 635-200, chapter 10.  He had 8 months and 14 days of creditable service and 154 days lost time.

The applicant applied to the Army Discharge Review Board (ADRB) on 
16 November 1972, and he was notified by the ADRB that the Board did not have the authority to review a discharge by reason of a general court martial.

Presidential Proclamation 4313 (PP 4313) was signed by President Ford on September 16, 1974.  Essentially, it provided that former members of the Armed Forces who were carried in a deserter (absent without leave (AWOL) status for extended periods of time between August 1964 and March 1973, were entitled to be considered for a clemency discharge program.  The program required that the former service member voluntarily return to military control, swear allegiance to the United States and promised to perform a stated period of alternate service in the civilian community.  The individual would be permitted to request an administrative discharge in lieu of trial by court-martial (an undesirable discharge (UD) was normally issued), which was approved by the respective service.  It the Selected Service System reported that the individual successful completed the period of alternate service, the Attorney General of the United States would issue a Clemency Discharge Certificate in the name of the President of the United States.  This discharge essentially returned the former service members’ civil rights.  However, the underlying reason for the service members’ discharge remained in effect for veteran’s benefits.  The services’ Discharge Review and Correction of Military Records Boards are not authorized to change, or in any way act on the Clemency Discharge issued on behalf of the President, but may act on the underlying reason(s) for the UD originally issued by the Military Service..  However, the Department of Veteran Affairs must make final determination on the entitlement of the former service member for veteran benefits.   

On 3 May 1976 a DD Form 215 (Correction to DD Form 214) was issued which stated that: “DD 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No 4313”.  No further details of the applicant’s participation in that program are in his records.

On 4 April 1977, the Department of Defense (DOD) implemented the Special Discharge Review Program (DoD-SDRP) whereby the military services reviewed all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, the program mandated a discharge upgrade to either honorable or general for any individual, who had completed a normal tour of duty in Southeast Asia; had been wounded in action; had been awarded a military decoration other than a service medal; had received an honorable discharge from a previous period of service, or had a satisfactory record of military service at least 24 months prior to discharge.  Other factors in consideration of a discharge upgrade included possible personal problems which may have contributed to the acts which led to the discharge, as well as a record of good post-service citizenship since the time of discharge.

On 20 June 1977, the Army Discharge Review Board (ADRB) upgraded the applicant’s UD to a GD under the provisions of the Department of Defense Special Discharge Review Program (DoD-SDRP), since he had completed alternate service under the provisions of PP 4313.

On 8 October 1977, the Congress enacted Public Law 95-126.  This legislation denied Department of Veterans Affairs (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The law required the DOD to establish historically consistent, uniform standards for discharge reviews and mandated reconsideration using these standards for all previously upgraded discharges under the SDRP and certain other programs.  Individuals whose SDRP upgraded discharges were not affirmed upon review were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review.

On 13 April 1978, the ADRB, in response to Public Law 95-126, reviewed the applicant’s upgraded discharge, but did not affirm the June 1977 upgrade.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of a UD discharge.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

5.  The applicant’s discharge was upgraded from a UD to a GD by the ADRB under the provisions of the DoD-SDRP; however, the GD was not affirmed for purposes of VA benefits under the provisions of PL 95-126.  The reason stated by the ADRB for this action was the frequent incidents of a discreditable nature committed by the applicant while on active duty.

6.  This Board concurs with the findings and conclusions of the ADRB decision not to affirm the discharge under the provisions of PL 95-126.  Therefore, it declines to take further action in the matter.

7.  Further, the Presidential pardon issued under the provision of PP 4313 is noted. However, this action in no way disturbs the underlying reason for the applicant’s discharge.

8.  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

__CMF__  __FE____  __RJW__  DENY APPLICATION

Carl W.S. Chun
Director, Army Board for Correction
of Military Records

INDEX

CASE ID	AR1999029067	
SUFFIX		
RECON		
DATE BOARDED	20000517	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19700414	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	A50.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.