MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 June 2003                   
	DOCKET NUMBER:    AR2003085427

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn. 		Chairperson	
	Mr. Hubert O. Fry		Member	
	Ms. Marla J. Troup		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that in 1976 everyone who had problems during Vietnam was given amnesty.  He claims that he inquired about this and he qualified.  However, after completing the initial paperwork, he did not follow-up.  He states that he entered the Army at age 17, and he was not an adult.  He claims that he made some bad decisions for which he is truly remorseful.  He claims that since his discharge he has been a law abiding and productive citizen. 

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

On 26 July 1965, he enlisted in the Regular Army for four years.  He successfully completed basic training at Fort Ord, California.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that he was promoted to private first class/E-3 (PFC/E-3) on 26 April 1966, and this was the highest rank he attained while serving on active duty.

The applicant’s record documents no acts of valor, significant achievement or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions. The record also shows that the applicant was tried and convicted by special court-martial on two separate occasions.  Further, it indicates that he accrued 474 days of time lost due to being absent without leave (AWOL) and/or in confinement.  

The specific facts and circumstances pertaining to the applicant’s discharge are not on file.  However, a properly constituted separation document (DD Form 214), which contains the authority and reason for the applicant’s discharge is available.  

The separation document confirms that at the time of his discharge, the applicant had completed a total of 1 year, 8 months, and 12 days of creditable active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s separation document is blank and shows that he earned no awards or decorations during his tenure on active duty. 

The DD Form 214 also confirms that the applicant was discharged with an
UD on 6 August 1968.  Item 11c (Reason and Authority for Separation) contains an entry that verifies that he was discharged under the provisions of Army Regulation 635-212, by reason of unfitness.  Item 55 (Remarks) also contains an entry that verifies that the applicant accrued 474 days of lost time during his active duty tenure.  
Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An undesirable discharge was normally considered appropriate for members separating under these provisions. 

In Presidential Proclamation Number (PP #) 4313, dated 16 September 1974, the President announced a clemency program designed to provide deserters an opportunity to work their way back into American society.  This proclamation pertained to all individuals who were carried administratively as deserters if their last period of AWOL was between 4 August 1964 and 28 March 1973.  Under this program, eligible enlisted deserters were offered the opportunity to request an undesirable discharge for the good of the service if they agreed to perform alternate service under the supervision of the Selective Service System.  Successful completion of alternate service entitled a participant to receive a Clemency Discharge Certificate.  

Clemency Discharges issued pursuant to PP # 4313 did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs.  The Army Discharge Review Board adapted the policy that a Clemency Discharge would be considered by a board in its deliberations but that the discharge per se did not automatically require relief be granted.  

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 Board notes the applicant’s contention that his discharge should be upgraded because everyone who had problems during Vietnam were given amnesty.  However, the Board finds this factor provides an insufficient evidentiary basis to grant the requested relief.  

2.  Clemency Discharges issued pursuant to PP # 4313 were normally issued after a member had completed alternate service under the supervision of the Selective Service System.  Further, these discharges did not impact the underlying discharge a member received and did not entitle the individual to any benefits administered by the Department of Veterans Affairs.  

3.  The evidence of record shows the applicant was separated for unfitness based on an extensive history of misconduct.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it finds that the character of the applicant’s discharge accurately reflects his overall record of service.  

4.  The evidence provided also provides no indication that the applicant ever satisfied the requirements necessary to receive a clemency discharge under the provisions of PP # 4313.  Therefore, the Board concludes that the requested relief is not warranted in this case. 

5.  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.

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

__FE__  __HOF___  __MT___  DENY APPLICATION

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

INDEX

CASE ID	AR2003085427	
SUFFIX		
RECON		
DATE BOARDED	2003/06/17	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1968/08/06	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.