MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 September 2000
	DOCKET NUMBER:   AR2000036241

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Elzey J. Arledge		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 (UD) be upgraded to an honorable discharge. 

APPLICANT STATES:  In effect, he was discharged under the provisions of Presidential Proclamation 4313 (PP4313) and enrolled in the Reconciliation Service Program (Clemency Program).  He was told that under this program, he would be granted clemency and his UD would be upgraded to a general discharge within 6 months.  He also believes that he is entitled to pay which he never received.  

COUNSEL CONTENDS:  That the applicant’s medical records notes that he became addicted to narcotics when he served in the Republic of Vietnam (RVN) and that this addiction would have diminished his ability to serve.  Additionally, counsel contends that during the time in which the applicant served, there was a lack of rehabilitation programs to treat his addiction.

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

That prior to the period of service under review, he completed an honorable period of service in the Regular Army (RA) from 16 June 1969-26 February 1970. He served in military occupational specialty (MOS) 76A (Supply Clerk).

On 27 February 1970, he reenlisted in the RA for a period of 3 years, his previous MOS and pay grade E-3.  

On 25 May 1970, while assigned to the Overseas Replacement Station, Oakland, California, for processing for deployment to the RVN, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice was imposed against the applicant for departing his unit in an absent without leave (AWOL) status from 2 May-22 May 1970. His punishment included forfeiture of $29.00 pay and reduction from pay grade E-3 to pay grade E-2.  

On 30 May 1970 he was assigned to the RVN.  On 23 July 1970, NJP was imposed against him for being in an off-limits area in the RVN.  His punishment included forfeiture of $30.00 pay.

On 5 June 1970, he was promoted to pay grade E-3.  On 11 November 1970, NJP was imposed against him for failure to go to his appointed place of duty on 
6 November 1970.  His punishment included forfeiture of $34.00 pay and reduction from pay grade E-3 to pay grade E-2.

On 28 February 1971, NJP was imposed against him for leaving his guard post on 23 February 1971, with the intent to abandon it.  His punishment included forfeiture of $24.00 pay, 14 days restriction and extra duty. 

On 13 April 1971, he was convicted by a special court-martial of being disrespectful towards a commissioned officer, of striking a commissioned officer and of disobeying the lawful commands of a commissioned officer.  His sentence included confinement at hard labor for 4 months, forfeiture of $75.00 pay per month for 4 months and reduction from pay grade E-2 to pay grade E-1.  

On 12 July 1971, the unexecuted portion of his sentence to confinement was suspended.  

On 15 July 1971, he departed his unit in the RVN in a casual leave status enroute to a new assignment at Fort Benning, Georgia.  He was in civil confinement from 21 August-20 September 1971, for unknown reason(s).  

On 27 September 1971, a fifth NJP was imposed against him for being AWOL from his unit at Fort Benning from 21-23 September 1971.  His punishment included forfeiture of $25.00 pay.

On 12 October 1971, he again went AWOL from his unit at Fort Benning and he remained AWOL until 23 January 1972 when he was returned to military control in Pennsylvania.  On 24 January 1972, he was transferred to Fort George G. Meade, Maryland.  On 26 January 1972, he departed Fort George G. Meade AWOL.

On approximately 27 March 1975, he was returned to military control at Fort Benjamin Harrison, Indiana.  

On that same day, an SF Form 88 (Report of Medical Examination) shows that 
he underwent a physical evaluation.  During the evaluation process, he authenticated a document with his own signature in which he stated that he was in good health and that he was taking no medication.  The examining official determined that he was qualified for retention and there was no indication that he was suffering from any type of drug addiction.

On 28 March 1975, he enrolled in the Reconciliation Service Program (Clemency Program).  The Joint Alternate Service Board determined that the applicant would be required to serve 12 months of alternate service.  The applicant reaffirmed his allegiance to the United States of America and pledged to faithfully complete a period of 12 months of alternate service. 

The appropriate authority approved the applicant’s request for discharge under the provisions of PP 4313 and issuance of a UD.  Accordingly, on 28 March 1975, he was discharged with 1 year, 7 months, and 29 days of active military service and 1,108 days lost time due to being AWOL and in confinement during the enlistment under review.  He also had 8 months and 11 days of prior active military service.
On 29 October 1975, the applicant was terminated from the Reconciliation Service Program by the Selective Service System (SSS), since he failed to complete the required period of alternate service.  He left an approved job without authorization.  He departed his state of residence without notice to the State Director of the SSS.  He also did not provide an address at which mail would reach him.

On 20 December 1979, the Army Discharge Review Board denied the applicants request for an upgrade of his discharge.

President Ford signed PP4313 on 16 September 1974.  Essentially 
PP4313 provided that former members of the Armed Forces who were carried in a deserter AWOL status for extended periods of time between August 1964 and March 1973, were entitled to be extended 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 promise 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 (a UD was normally issued), which was approved by the respective service.  If the SSS reported that the individual successfully completed the period of alternate service, the Attorney General of the United States would issue a Clemency Certificate in the name of the President of the United States.  This discharge essentially returned the former service member’s civil rights.  However, the underlying reason for the service members’ discharge remained in effect for veteran’s benefits.  The services’ Discharge Review Boards and Boards for Correction of Military Records 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 issued under the program.  However, the Department of Veterans Affairs must make final determination on the entitlement of a former service member for veterans benefits.

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 has failed to submit evidence that would satisfy the aforementioned requirement.

2.  This Board found that the applicant was not granted clemency under the provisions of PP4313, because he did not satisfactorily complete the Reconciliation Service Program.  He was terminated from the program by the SSS when he failed to meet the requirements to complete the alternate service. 

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  Neither his prior period of honorable service nor his RVN service sufficiently mitigates his offenses to warrant clemency.  While assigned to a hostile environment, he repeatedly committed offenses that displayed a lack of respect for authority.  He was very disruptive and his behavior threatened the morale and safety of those serving with him.  

5.  The day before the applicant was discharged from the Army in March 1975, he underwent a physical evaluation that determined that he was in good health and he was taking no medication.  He showed no signs of drug addiction and he was found fit for duty.

6.  If, in fact, the applicant violated the Army's drug policy not to possess or use illegal drugs, he compromised the trust and confidence placed in him as a soldier and he knowingly risked his military career and diminished the quality of his service below that meriting an honorable discharge.

7.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

8.  The applicant’s finance records are not available.  Further, he has provided no evidence of any pay problems or back pay to which he might be entitled while he was in the service between 1969 and 1975.  

9.  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

__rvo___  __mkp___  __eja____  DENY APPLICATION

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

INDEX

CASE ID	AR2000036241	
SUFFIX		
RECON		
DATE BOARDED	20000914	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19750328	
DISCHARGE AUTHORITY	Presidential Proclamation 4313	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	106.0000	
2.		
3.		
4.		
5.		
6.