MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 August 2001
	DOCKET NUMBER:   AR2001058983

	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:

	Mr. John H. Kern		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Paula Mokulis		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 more favorable discharge.

APPLICANT STATES:  In effect, that there was no error or injustice in his case; however, he desires his discharge to be upgraded.

EVIDENCE OF RECORD:  The applicant's military records, though somewhat incomplete, show:

He enlisted in Detroit, Michigan on 19 December 1968 for a period of 3 years.  He completed his training and was transferred to Vietnam in May 1969 for duty as an infantryman.  He reenlisted on 13 September 1969 for a period of 3 years and training as a motor transport operator.

He was twice convicted by special court-martials in Vietnam, once for being absent from his place of duty on 9 January 1970 and the second time for being absent without leave (AWOL) from 24 March to 2 July 1970. 

He was reassigned from the Correctional Holding Detachment – Vietnam on 11 September 1970 to the 18th Engineer Brigade as a rehabilitative transfer.  He departed Vietnam for the Overseas Returnee Detachment at Fort Lewis, Washington in October 1970 to await further assignment.  He was authorized 30 days leave en route to Fort Lewis and instead of returning, went AWOL on 9 November 1970.  He remained absent until he was returned to military control at Fort Benjamin Harrison, Indiana on 27 February 1975. 

After consulting with counsel, the applicant submitted a request for discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313 on 20 March 1975.  He indicated that he understood that he would be discharged under other than honorable conditions, that he had not been coerced by any person to submit such a request, that he understood the consequences of such a request and the impact that an undesirable discharge would have on him. He also indicated that he understood that he was required to report to the State Director of Selective Service within 15 days of discharge for performance of alternate service and that upon satisfactory completion of such service he would be issued a Clemency Discharge Certificate and that the certificate did not alter his ineligibility for benefits

His request was approved and he was discharged under other than honorable conditions on 20 March 1975 under the provisions of Presidential Proclamation 4313.  He had served 1 year, 6 months and 16 days of total active service and had 1,724 days of lost time due to AWOL. 

On 23 July 1975 the applicant was terminated from enrollment in the Reconciliation Service Program by the Selective Service System.  The letter of termination indicates that the applicant was noncooperative with efforts to place him on an approved job and that he failed to report for interviews with acceptable employers.  

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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 of Military 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.”  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 administrative discharge under Presidential Proclamation 4313 was accomplished in accordance with applicable laws and regulations with no indication of any of the applicant’s rights.

2.  Accordingly, his discharge under other than honorable conditions appropriately reflects the character of his service.

3.  The Board notes that by allowing the applicant to administratively separate under Presidential Proclamation 4313, he avoided his being tried by court-martial and having a felony offense on his records.  While he may not now agree with the decision to discharge him under other than honorable conditions, he should not be allowed to change his mind at this late date.

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

___pm___  __jhk____  ___tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2001058983	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/23	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1969/09/13	
DISCHARGE AUTHORITY	PP4313	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  950	144.0009/A00.00/presidential proclamation	
2.		
3.		
4.		
5.		
6.