MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 August 2000
	DOCKET NUMBER:   AR2000035123

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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:  That his undesirable discharge be upgraded to an honorable discharge.

APPLICANT STATES:  That he believes his discharge was unjust because he joined the Army at a time when others were dodging the draft and running to Canada.  He states that he was young and his wife got pregnant while he was in Germany and he was overwhelmed and did not know how to handle it very well.  He further states that he was judged too harshly and that the type of discharge that he received has haunted him for 30 years.

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

He was inducted in the Army on 29 May 1968 and he successfully completed his training as a cook.  He was promoted to the pay grade of E-2 on 31 July 1968, to E-3 on 6 March 1969 and to E-4 on 26 September 1969.  He was honorably discharged on 15 March 1970 for the purpose of the immediate reenlistment.  On 16 March 1970, he reenlisted in the Army for 3 years.

Nonjudicial punishment (NJP) was imposed against the applicant on 13 October 1971, for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay.

On 7 March 1972, NJP was imposed against him for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay.

Charges were preferred against the applicant for three specifications of failure to go to his appointed place of duty, being AWOL from 16 June until 18 June 1972, and for disobeying a lawful regulation.

After consulting with counsel he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.

On 12 July 1972, the appropriate authority approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, on 17 July 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He had completed 4 years, 1 month and 2 days of total active service and he was furnished an Undesirable Discharge Certificate.

On 16 January 1976, the applicant was furnished a Correction to Department of Defense Form 214 (DD Form 215) which indicates that he was furnished a Clemency Discharge Pursuant to Presidential Proclamation Number 4313.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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 an undesirable discharge.

Presidential Proclamation 4313 was issued by President Ford and affected three groups of individuals.  These groups were: (1) Fugitives from justice who were draft evaders; (2) Members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of Articles 85, 86, or 87 of the UCMJ.  The individuals who were absent from the Armed Forces were afforded an opportunity to return to military control and elect either an Undesirable Discharge under PP 4313 or to stand trial for their offenses and take whatever punishment resulted.  For those who elect 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 the individuals completed the service satisfactorily, they would be entitled to receive a Clemency Discharge.  The third group could apply to the Presidential Clemency Board which was made of individuals appointed by the President (members were civilians, retired military and members of the Reserve Components) who would make a similar determination regarding the performance of alternate service.  Both the Joint Board and Presidential Board were authorized to award a Clemency Discharge with the performance of alternate service (excusal from alternate service).  In practice, the Joint Board did not take such action while the Presidential Board did in many cases.  The dates of eligibility for consideration under PP 4313 for those already discharged from the military service were 4 August 1964 to 28 March 1973 inclusive.  Alternate Service was to be performed under the supervision of the Selective Service System.  The individual was responsible for finding a job that met the requirements of the program.  He would obtain the approval of his state Selective Service officials regarding the job and reports would be furnished periodically as to how he was performing.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual’s former military service.  The military service issued the actual Clemency Discharge.  The Clemency Discharge did not effect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.

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.  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.

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

3.  The applicant’s contentions have been noted by the Board.  However, he submitted a request for discharge for the good of the service in lieu of trial by court-martial and he was furnished an Undesirable Discharge Certificate.  He was subsequently awarded a Clemency Discharge in accordance with Presidential Proclamation 4313.  His 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.  Although he may now believe that he made the wrong choice, he should not be allowed to change is mind at this late date.

4.  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 this requirement.

5.  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

___mvt__  __kwl ___  ___elw __  DENY APPLICATION

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

INDEX

CASE ID	AR2000035123	
SUFFIX		
RECON		
DATE BOARDED	2000/08/22	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/07/17	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  950	144.0000	
2.		
3.		
4.		
5.		
6.