MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 November 2000
	DOCKET NUMBER:   AR2000042254

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Martha E. Schuler		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 discharge under other than honorable conditions be upgraded to honorable based upon post-service clemency.

APPLICANT STATES:  That he married at age 19 and assumed the responsibilities of a husband and father to his stepchildren.  He was inducted into the Army and had to support his family on $124.00 per month.  During basic combat training (BCT) he injured his back and was diagnosed with spondylolysis. While in advanced individual training (AIT) his wife became seriously ill, but he was not permitted emergency leave to visit her.  During both BCT and AIT his instructors used a variety of tactics to motivate trainees, which were demeaning and humiliating.  He could not reconcile their behavior with what he understood as military discipline.  He states he was never insubordinate but did question the rationale behind the tasks they had him perform.  He abided by the Uniform Code of Military Justice and never received a counseling or nonjudicial punishment.  He further contends that he was required to perform duties that exceeded the limits of his physical capabilities and when told he was shipping out to the Republic of Vietnam, he went AWOL (absent without leave).  He believed that he would not be able to defend himself and that his life was being forfeited.  After being AWOL for a significant period of time, he was separated for the good of the service pursuant to Presidential Proclamation 4313 and agreed to participate in an alternative service program.  However, due to reinjuring his back and closure of the local Reconciliation Service Program Office, he did not complete the alternative service program.  Since then he has worked continuously and has been a law-abiding citizen.  He has been an active, productive member of his church and community.  The circumstances surrounding his discharge have plagued him for the past 25-years.  He believes the character of his discharge is unjust and that he should have the opportunity to be judged as the man he has become.

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

The applicant was inducted into the Army on 23 July 1970 for a period of 2 years. He completed his initial training and was assigned for duty in the Republic of Vietnam.

On or about 27 December 1970 the applicant went AWOL instead of reporting for duty in Vietnam.  Before returning to military control, the applicant requested participation in the Presidential Proclamation 4313 program in which he would be given an opportunity to request a discharge for the good of the service, reaffirm his allegiance to his country, and pledge to perform alternate service for a period not to exceed 24 months.  In return for satisfactory completion of alternate service, he would receive a Clemency Discharge Certificate.

On 31 January 1975 the applicant returned to military control.  He reaffirmed his allegiance to the United States of America and agreed to serve in whatever alternate service his country prescribed for him, pledging to complete 23 months service.

On 31 January 1975 he was discharged from the Army by reason of willful and persistent unauthorized absence pursuant to Presidential Proclamation 4313.  He received an undesirable discharge.  He had completed 5 months, and 6 days of creditable active service and had 1,488 days of lost time due to AWOL.

On 8 July 1976 the Reconciliation Service Division Manager terminated the applicant’s enrollment in the Reconciliation Service Program because he did not complete his required period of alternate service.  

On 19 June 1978 the applicant, with counsel, appeared before the Army Discharge Review Board (ADRB).  The applicant contended that the character of his discharge was improper because his commander committed prejudicial errors of fact, law, procedure, and discretion by forcing the applicant to exceed the limits of his permanent physical profile and subsequently aborted his attempts to be medically discharged.  He stated that the type of discharge was inequitable in view of the applicant’s impaired ability to serve, as evidenced by his physical problems.  He further stated that it was inequitable in view of the arbitrary and capricious actions of the applicant’s commander.  The ADRB rejected the applicant’s contentions noting that there was no evidence showing that his profile was violated, or that his commander had acted in an arbitrary and capricious manner.  Furthermore, his profile did not restrict his worldwide deployability.  The ADRB denied the applicant’s request.

Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former soldiers who received less than an honorable discharge 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.

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.  The Clemency Discharge, like a Presidential pardon, is an expression by the Chief Executive that the stigma of a bad record has been removed, and that the bearer of a Clemency Discharge should no longer be discriminated against in his future consideration.

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.  Lacking evidence to the contrary, administrative regularity is presumed in the applicant’s administrative separation under the provisions of Presidential Proclamation 4313, for the good of the service, to avoid trial by court-martial.

2.  Under the provisions of Presidential Proclamation 4313 the applicant was required to serve 23 months of alternate service.  The evidence shows that he was terminated from the program due to noncompletion.

3.  The applicant admitted to not completing the alternate service and the evidence supports his admission.  However, even if he had completed all the requirements, the program did not provide for the automatic issuance of an Honorable Discharge Certificate. 

4.  After considering his overall record of service without regard to the Presidential Proclamation 4313 program, the Board found no basis for upgrading his discharge, considering his record of extended AWOL during his period
of service.

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

__WTM__  __JEA __  __MES       DENY APPLICATION

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

INDEX

CASE ID	AR2000042254	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001116	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19750131	
DISCHARGE AUTHORITY	PRESIDENTIAL PROCLAMATION 4313	
DISCHARGE REASON	 	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	A63.00	
2.		
3.		
4.		
5.		
6.