MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 May 2000
	DOCKET NUMBER:   AR2000037303

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern III		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 honorable.

APPLICANT STATES:  That he did not feel that participation in the Vietnam War was right and he felt that he should be at home with his family because his family needed him at that time.  He also states that the President of the United States pardoned all U.S. soldiers who objected to the Vietnam War.  In support of his application he submits a copy of his personnel qualification record (DA Form 20), his report of separation (DD Form 214), a copy of his request for discharge, and a copy of his charge sheet.

EVIDENCE OF RECORD:  The applicant's military records were not available for review by the Board.  However, the documents provided by the applicant show:

He was inducted on 13 August 1969 and successfully completed his basic training at Fort Polk, Louisiana on 16 October 1969.  He was then transferred to Fort Leonard Wood, Missouri on 17 October 1969 for advanced individual training (AIT) as a pioneer.  He was promoted to the pay grade of E-2 on 13 December 1969.

Although the record of punishment is not present in the available records, they do show that he went AWOL from 11 May to 14 May 1970. 

He again went AWOL on 5 August 1970 and remained absent until he was returned to military control at Fort Benning, Georgia on 22 December 1970.  He was convicted by a special court-martial on 25 January 1971 of being AWOL from 5 August to 21 December 1970.  He was sentenced to confinement at hard labor for 45 days (suspended) and a reduction to the pay grade of E-1.

The applicant again went AWOL on 3 March 1971 and remained absent until he was returned to military control at Fort Campbell, Kentucky on 25 August 1971 and charges were preferred against him while in confinement. 

After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he acknowledged that he was voluntarily requesting the discharge of his own free will and that he had not been subjected to coercion whatsoever by any person.  He also stated that he understood the possible effects of a discharge under other than honorable conditions and the loss of benefits thereof, and that he understood that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He also elected not to submit a statement in his own behalf.

Information contained in the defense counsel’s questionaire indicates that the applicant had nonjudicial punishment imposed against him on five separate occasions and was court-martialed once.

The appropriate authority (a brigadier general) approved his request for discharge on 23 September 1971 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 27 September 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 10 months and 4 days of total active service and had 358 days of lost time due to AWOL and confinement.

There is no indication in the available records to show that he 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 the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  A discharge under other than honorable conditions is normally considered appropriate.

Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals.  These groups were fugitives from justice who were draft evaders; members of the Armed Forces who were in an unauthorized absence status; and prior members of the Armed Forces who had been discharged with a punitive discharge for violations of Articles 85, 86, or 87 of the Uniform Code ofMilitary Justice.  The last group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military and members of the Reserve components) who would make a determination regarding the performance of alternate service.  That board was authorized to award a Clemency Discharge without the performance of alternate service (excusal from alternate service).  The dates of eligibility for consideration under this proclamation 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.  When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual’s former military service.  The military services issued the actual Clemency Discharges.  The Clemency Discharge is a neutral discharge, issued neither under “honorable conditions” nor under “other than honorable conditions.”  It is to be considered as ranking between an undesirable discharge and a general discharge.  A Clemency Discharge does not affect the underlying discharge and does not entitle the individual to any benefits administered by the Department of Veterans Affairs (formerly Veterans Administration).  While there is no change in benefit status per se, a recipient may apply to the Department of Veterans Affairs for 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.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by  court-martial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Therefore, it appears that he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge, a felony conviction, and the possibility of further confinement, if convicted.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  The applicant’s contentions have been noted by the Board; however, they are not sufficiently mitigating when compared to the extensive length of his absences and his otherwise undistinguished record of service during such a short period of time.

5.  The applicant’s contention that the President pardoned all soldiers who objected to the war appears to be without merit.  A clemency discharge issued under Presidential Proclamation 4313 did not disturb the underlying discharge nor did it confer any benefits.  Accordingly, had the applicant applied for clemency under that program, he would still have an undesirable discharge.

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

__tbr ___  __gp____  __mkp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037303	
SUFFIX		
RECON		
DATE BOARDED	2000/05/10	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/09/27	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.