BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160002895 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160002895 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160002895 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests his under other than honorable conditions discharge be upgraded to fully honorable in accordance with the pardon given by President Carter. He also requests a personal hearing. 2. The applicant states he was held in a cell alone and was not let out until he signed an undesirable discharge. President Carter's administration found out and pardoned him (and others) with a discharge upgrade. He applied for an upgrade of his discharge during President Carter's administration. He also got a response that stated he qualified. Then he moved out of the State. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army for 2 years on 31 March 1972. He completed basic combat training at Fort Jackson, SC. He was reassigned to the 3rd Air Defense Training Battalion, 1st Advanced Individual Training (AIT) Brigade, Fort Bliss, TX, for completion of AIT. 3. His records show, while in training at Fort Bliss, TX, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * 22 June 1972, failing to go at the time prescribed to his appointed place of duty * 6 July 1972, two instances of failing to go at the time prescribed to his appointed place of duty 4. It appears he did not complete AIT at Fort Bliss and at some point he was reassigned to the 1st Battalion, 1st AIT Brigade, U.S. Army Training Center, Fort Leonard Wood, MO. 5. While at Fort Leonard Wood, he was reported absent without leave (AWOL) on two occasions: from 7 August to 25 September 1972 and from 16 to 21 October 1972. 6. On 24 October 1972, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 7 August to 26 September 1972 and 16 October to 21 October 1972. 7. He was issued orders to report to Europe via the Overseas Replacement Station at Fort Dix, NJ. However, on 17 December 1972, he was reported AWOL and on 16 January 1973, he was dropped from Army rolls as a deserter. He ultimately returned to military control on 24 July 1973 at Fort Gordon, GA. 8. On 3 August 1973, court-martial charges were preferred against the applicant for one specification of being AWOL from 17 December 1972 to 24 July 1973. 9. On 3 August 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he indicated: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person; he was advised of the implications that were attached to his request * he acknowledged that he understood if his discharge request was accepted, he might be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate * he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement on his own behalf; however, it is not available with this case 10. The applicant's immediate and intermediate commanders recommended approval of the discharge action with the issuance of an undesirable discharge. The immediate commander indicated that he interviewed the applicant on 2 August 1973 and the applicant made the statement that he did not have enough money to get back. 11. On 17 August 1973, the separation authority approved the discharge action under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions discharge, and reduction to the lowest enlisted grade. Accordingly, the applicant was discharged on 12 September 1973. 12. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. He completed 8 months and 7 days of active service and he had 275 days of lost time. 13. On 10 May 1977, an official at the Special Discharge Review Activity notified the applicant his application for consideration under the Special Discharge Review Program (SDRP) was examined; however, he was not eligible under this special program. To be eligible, he must have been discharged during the period 4 August 1964 to 28 March 1973. He could apply to the Army Discharge Review Board (ADRB) for review of his discharge. 14. There is no indication he applied to the ADRB for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the policy for administrative separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. However, an undesirable discharge was considered appropriate at the time the applicant was discharged. b. Paragraph 3-7a states 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Presidential Proclamation 4313 (PP 4313), dated 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 VA 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. 4. A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as the PP 4313 Extension). This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) whose records were free of any compelling reason to deny relief. This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals. Whether the individuals had performed alternate service was not an issue to be considered. 5. The Department of Defense (DOD) Special Discharge Review Program (SDRP) was directed in a 1977 memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether re-characterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with PP 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 6. On 8 October 1977, Public Law 95-126 provided that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions discharge, be added to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA. 7. Public Law 95-126 further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions. It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards. On 29 March 1978, these newly established uniform discharge review standards were published in DOD Directive 1332-28 (Discharge Review Board Procedures and Standards). DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. The applicant's service records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 3. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His administrative separation was accomplished in compliance with applicable regulations at the time. Based on his record of indiscipline, the separation authority determined the applicant's service did not rise to the level required for an honorable or a general discharge. 4. Although the applicant applied for consideration of his case under the DOD SDRP, he was not eligible under this special program. To be eligible, he must have been discharged during the period 4 August 1964 to 28 March 1973. He was discharged in September 1973. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002895 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002895 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2