RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 March 2007 DOCKET NUMBER: AR20060009899 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his clemency discharge be upgraded to an honorable discharge. 2. The applicant essentially states that he deserves to have his clemency discharge upgraded to an honorable discharge in recognition of his satisfactory completion of alternate service pursuant to Presidential Proclamation 4313 (PP 4313). 3. The applicant provides the following in support of this application: a. his DD Form 214 (Report of Separation From Active Duty) which was issued at the time of his undesirable discharge on 24 January 1975; and b. his DD Form 215 (Correction to DD Form 214) which was issued on 22 August 1975 after the applicant satisfactorily completed his required amount of alternate service. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 22 August 1975, the date his undesirable discharge was changed to a clemency discharge. The application submitted in this case is dated 7 July 2006. 2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant’s military records show that he enlisted in the Regular Army on 14 February 1969 for a period of 2 years. He completed basic and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman). He departed for the Republic of Vietnam on 13 July 1969, and served with two different units of the 3rd Battalion (Airmobile), 506th Infantry Regiment. He returned to the continental United States on 12 July 1970, and was assigned to Fort Meade, Maryland in August 1970. 4. On 8 September 1970, the applicant went absent without leave (AWOL). His status was later changed from AWOL to dropped from the rolls, and he was classified as a deserter. 5. On 22 November 1974, a letter was sent to the applicant’s mother which essentially informed her that the applicant was eligible to participate in a clemency program for individuals who absented themselves without leave, were dropped from the rolls, or who missed movement between 4 August 1964 and 28 March 1973 (PP 4313). This letter also stated, in pertinent part, that to participate in the program, the applicant must agree to participate in the President’s Program, agree to reaffirm his allegiance to the United States, and pledge to perform alternate service for a period not to exceed 24 months. This letter also advised the applicant’s mother that the clemency program was going to be terminated on 31 January 1975, and that thereafter, the applicant would no longer be eligible for separation under this program. 6. On 23 January 1975, the applicant returned to military control. 7. On 24 January 1975, the applicant consulted legal counsel and was advised of the nature of the offense for which he could be tried, the maximum permissible punishment that could be imposed, the possible consequences of an undesirable discharge, and the nature and effect of his pledge to perform alternate service. Subsequent to this counseling, the applicant voluntarily executed a request for discharge for the good of the service pursuant to the provisions of PP 4313, dated 16 September 1974. In connection with his request for discharge for the good of the service, the applicant signed a “Reaffirmation of Allegiance and Pledge to Complete Alternative Service” statement. In this statement, he essentially acknowledged that in contravention with his enlistment oath, he voluntarily went AWOL and that he recognized that he had a further service obligation as a citizen. He further agreed to perform 4 months of alternate service in whatever alternate service his country may prescribe for him, which would be performed under the supervision of the Selective Service System (SSS). 8. Accordingly, on 24 January 1975, the applicant was discharged from the Regular Army after completing 1 year, 6 months, and 26 days of creditable active military service and after having accrued a total of 1,590 days of time lost due to being AWOL and in a deserter status. The DD Form 214 that was issued to him at the time of his discharge shows that he received an undesirable discharge, and that he agreed to perform 4 months of alternate service pursuant to PP 4313. 9. On 22 August 1975, the SSS issued a SSS Form RS-2 (Certificate of Completion) which shows that the applicant completed his prescribed Reconciliation Service in accordance with his signed agreement. Also on this date, a DD Form 215 was issued to this applicant, which corrected Item 27 (Remarks) of the applicant’s DD Form 214 by adding the following statement: “DD [Form] 1953A Clemency Discharge [Certificate] issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation [Number] 4313.” 10. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 11. The applicant essentially stated that he deserves to have his clemency discharge upgraded to an honorable discharge in recognition of his satisfactory completion of alternate service pursuant to PP 4313. However, his completion of alternate service pursuant to PP 4313 was already the sole basis for upgrading his undesirable discharge to a clemency discharge. 12. 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 public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any Department of Veterans Affairs (DVA) benefits. Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service, the original undesirable characterization of service would be retained. 13. Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) provides, in pertinent part, that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his clemency discharge should be upgraded to an honorable discharge. 2. While it is notable that the applicant successfully completed his 4 months of alternate service, the fact that he did so was the only reason his undesirable discharge was changed to a clemency discharge. However, the fact that he successfully completed 4 months of alternate service does not mitigate the fact that the applicant was dropped from the rolls of the Army for desertion, and that he had 1,590 days of lost time. 3. The evidence of record confirms the applicant committed an offense that was punishable under the Uniform Code of Military Justice with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge for the good of the service pursuant to PP 4313. The record further confirms all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. 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. The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge. 6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 August 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 August 1978. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __JA____ __SF ___ __RV____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ____James Anderholm_______ CHAIRPERSON INDEX CASE ID AR20060009899 SUFFIX RECON YYYYMMDD DATE BOARDED 20070306 TYPE OF DISCHARGE UD CHANGED TO A CLEMENCY DISCHARGE DATE OF DISCHARGE 19750822 DISCHARGE AUTHORITY PP 4313 DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY AR 15-185 ISSUES 1. 144.0009.0000 2. 3. 4. 5. 6.