MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 April 2001
	DOCKET NUMBER:   AR2000050226

	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:

	Ms. June Hajjar		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Harry B. Oberg		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 President Reagan pardoned all military personnel during the Vietnam War.

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

On 5 January 1973, he enlisted in the Army for 3 years at Fort Jackson, South Carolina in the pay grade of E-1.  Upon completion of his basic combat training he was transferred to Fort Benning, Georgia, where he successfully completed his training as a light weapons infantryman.  On 5 May 1973, he was promoted to the pay grade of E-2.

Nonjudicial punishment (NJP) was imposed against the applicant on 1 June 1973 for being absent from his place of duty.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

On 24 September 1973, NJP was imposed against him for being absent from his place of duty from 17 September until 19 September 1973.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

On 25 January 1974, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 23 October 1973 until he surrendered to military authorities and was returned to military control on 3 January 1974.  His sentence consisted of confinement at hard labor and a forfeiture of pay.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Separation, DD Form 214, indicates that the applicant was discharged on 9 May 1974, under the provisions of Army Regulation 635-200, chapter 13, for unfitness based on frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had completed 10 months and 23 days of total active service and he had 164 days of lost time due to AWOL and confinement.  He was issued an undesirable discharge.

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 13 contains the policy and outlines the procedures for separating individuals for unfitness.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  An undesirable discharge was normally considered appropriate.

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. 

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 appears to have been 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 appear to have been appropriate considering all the facts of the case.

3.  The Board has noted the applicant’s contentions.  However, the evidence of record clearly shows that the applicant did not meet the requirements to be issued a clemency discharge under Presidential Proclamation 4313.  There is no evidence of record that shows that he ever voluntarily entered into and completed an alternate restitution program, which would have been required for the issuance of clemency discharge.  He had NJP imposed against him twice and he was convicted by a special court-martial.  He had 164 days of lost time due to AWOL and confinement.  The character of the discharge appears to be commensurate with his overall record of service.

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

___hbo__  ___jh ___  __cla____  DENY APPLICATION

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

INDEX

CASE ID	AR2000050226	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/04/05	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/05/09	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	583	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  592  	144.5100.0000	
2.		
3.		
4.		
5.		
6.