MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 October 2000
	DOCKET NUMBER:   AR2000041098

	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. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Brenda F. Hirschi		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 a general discharge.

APPLICANT STATES:  That under President Carter’s administration, service members who went absent without leave (AWOL) were given amnesty and a general discharge.  He states that he should be entitled to the same benefits so that he can attend a school of higher education.

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

On 17 May 1972, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as an armor crewman.

The available record shows that the applicant went AWOL on 19 December 1972 and he remained absent until he surrendered to military authorities on 27 December 1972.

He went AWOL on 8 January 1973 and he remained absent until he surrendered to military authorities on 31 January 1973.  He was placed in pretrial confinement on 1 February 1973.

The available record shows that nonjudicial punishment was imposed against the applicant for both of his AWOL incidents.  However, the record is void of the punishment that he received.

On 5 February 1973, the applicant was notified that charges were pending against him for being AWOL and for one incident of failure to go to his appointed place of duty.  He acknowledged receipt of the notification and on 13 February 1973, 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.

The request for discharge was approved by the appropriate authority on 7 March 1973 and the commander directed the issuance of an undesirable discharge.  However, the applicant went AWOL again on 9 March 1973 and he remained absent until 13 March 1973.

Accordingly, on 21 March 1973, 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 8 months and 27 days of total active service and he had 36 days of lost time due to AWOL.  He was furnished an Undesirable Discharge Certificate.

On 19 May 1988, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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 (PP) 4313 issued by President Ford on 16 September 1974, provided for the issuance of a clemency discharge to certain former solders who voluntarily entered into and completed an alternate restitution program specifically designed for former soldiers who received less than honorable discharges for AWOL-related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, former members would be granted a “clemency” discharge by the President of the United States, thus restoring his or her affected civil rights.  However, the clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial. 

President Carter signed Public Law 95-126 on 8 October 1977.  This law was enacted by Congress because it was upset that deserters from the Republic of Vietnam were eligible for VA benefits if their discharge was upgraded under the Special Discharge Review Program (SDRP).  The law statutorily barred VA benefits for AWOL’s greater than 180 days as well as conscientious objectors.  The law also mandated the Discharge Review Board’s published “Uniform Standards” then “relook” all cases upgraded from under other than honorable conditions under the SDRP or the PP 4313 program (and it’s extension) using the Uniform Standards.

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, the records clearly show that he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  There is no evidence of record that shows that the applicant completed any alternate service that may have entitled him to a Clemency Discharge or that he ever applied for consideration under the PP 4313.  Therefore, he was appropriately furnished an Undesirable Discharge Certificate.

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

__eja ___  ___alr___  ___bfh __  DENY APPLICATION

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

INDEX

CASE ID	AR2000041098	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/31	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1973/03/21	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7101	
2.  713	144.7110	
3.		
4.		
5.		
6.