MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 August 2001
	DOCKET NUMBER:   AR2001056103

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Thomas F. Baxter		Member	
	Mr. John T. Meixell		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:  In effect, that his clemency discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that he has put his life back together.  He is working and raising a family and feels that it is time to correct this action by upgrading his discharge to honorable and issuing him a new Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).  In support of his application, he provides a copy of his Presidential pardon, and his DD Form 
214 with correction.

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

He enlisted in the Army on 5 June 1970 for 3 years.  He was 17 years and 
9 months of age and had only completed 8 years of school.  He successfully completed his initial training and was assigned to the Federal Republic of Germany for duty as a cook (94B).

On 8 December 1970, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) (27 days) from 3 to 30 November 1970.  The punishment included a reduction to private, E-1, a forfeiture of $31.00. and 14 days restriction and extra duty.  The applicant did not appeal the punishment.

On 9 December 1970, the applicant received NJP for willfully disobeying a lawful order, to wit: to get a haircut.  The punishment included a forfeiture of $31.00.  The applicant did not appeal the punishment.

On 22 March 1971, the applicant received NJP for twice leaving his appointed place of duty without authority.  The punishment included a forfeiture of $20.00 and 7 days restriction and extra duty.  The applicant did not appeal the punishment.

The applicant’s Enlisted Qualification Record (DA Form 20) shows that his conduct and efficiency from 21 July 1971 until his return to the United States on 22 October 1971 was unsatisfactory.

The applicant’s discharge packet is missing from his military records.  However, his DD Form 214 shows that he was administratively discharged on 28 October 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, for the good of the service.  His service was characterized as under other than honorable conditions.  He completed 1 year, 3 months and 
27 days of creditable active service and had 27 days of lost time due to AWOL.

On 13 February 1976, the applicant was informed that he had been granted a Presidential pardon pursuant to Presidential Proclamation 4313 of 16 September 1974.  He was provided with a Clemency Discharge (DD Form 1953A) along with a Correction to DD Form 214 (DD Form 215).  He was also informed of his eligibility to apply to the Army Discharge Review Board (ADRB) for a review and possible change of his discharge.

There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

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.

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, not to exceed 24 months, 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.” 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 Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial.

2.  The type of discharge directed and the reasons therefor were appropriate considering all available facts of the case.

3.  Under the provisions of Presidential Proclamation 4313, the applicant was required to serve up to 24 months of alternate service.  His Presidential pardon is sufficient evidence to convince the Board that he completed this requirement.  However, completing the requirements of the program did not provide for an 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.

5.  The applicant’s good post service conduct is not sufficient to warrant an upgrade of his 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

__  JH __  __TFB  __  __JTM  __  DENY APPLICATION

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

INDEX

CASE ID	AR2001056103	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/16	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19711028	
DISCHARGE AUTHORITY	AR 635-200, CHPT 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	29.00	
2.		
3.		
4.		
5.		
6.