MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 August 2000
	DOCKET NUMBER:   AR1999034115

	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. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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 be upgraded.

APPLICANT STATES:  In effect, he provides what he claims is proof of 
21 months of alternate community service performed under the provisions of Presidential Proclamation Number 4313 (PP # 4313).  

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

On 7 February 1969, he enlisted in the Regular Army for 3 years.  He completed basic training at Fort Jackson, South Carolina and advanced individual training at Fort Benjamin Harrison Indiana.  He was assigned overseas to Germany for his first permanent duty station.  

The applicant served in Germany for 11 months at which time he received orders for reassignment to Vietnam.  He processed a request for a compassionate reassignment which was disapproved.  He then departed on an extended absence without leave (AWOL) and returned to military control under the clemency program outlined in PP # 4313.  

The applicant’s military record documents no acts of valor, significant achievement, or service warranting special recognition.  However, the record does contain a disciplinary history that includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), and extensive AWOL related misconduct.

On 7 July 1969, the applicant accepted NJP for failure to repair, being drunk and disorderly, and for being disrespectful in language toward a superior officer.  His punishment for these offenses was a forfeiture of $26.00 per month for 2 months. 

On 4 August 1970, the applicant was placed in an AWOL status when he failed to report to Fort Lewis, Washington for movement to Vietnam.  He was dropped from the rolls as a deserter on 29 September 1970, and remained away until 
8 January 1975 when he returned to military control.

On 15 January 1975, the applicant consulted legal counsel and after being advised of the nature of the offenses for which he could be tried; the maximum permissible punishment that could be imposed; the possible consequences of an undesirable discharge; the nature and effect of his pledge to perform alternate service; and of the procedures and rights available to him, he voluntarily requested 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 effect, in this statement, he acknowledged that in contravention with his enlistment oath he voluntarily went AWOL and that he recognized he had a further service obligation as a citizen.  He further agreed to perform 21 months of alternate service under the supervision of the Selective Service System. 

Accordingly, on 16 January 1975, the applicant was discharged from active duty after completing 1 year, 6 months, and 1 day of creditable active military service, and after having accrued a total of 1614 days of time lost due to AWOL.  The Department of Defense (DD) Form 214 issued to and signed by the applicant upon his separation shows that he received an undesirable discharge and that he agreed to perform 21 months of alternate service pursuant to PP #4313.

On 8 August 1975, a letter from the Reconciliation Service Division Manager of the National Headquarters of the Selective Service System terminated the applicant from the Reconciliation Service Program based on his not completing his required period of alternate service.  This letter further indicated that the applicant’s termination from the program was the result of his being 
non-cooperative with efforts to place him on an approved job, his failure to report for a scheduled interview, and his failure to respond to official correspondence.  

On 7 August 1978, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found the discharge process was proper and equitable in all respects. 

In 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 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 considered the documents submitted by the applicant which he claims provides proof of his completing the alternative service required by 
PP # 4313.  However, while the Board congratulates the applicant on his community service, it notes that he did not perform this service under the terms he agreed to in the request for discharge and alternative service pledge he completed in conjunction with his discharge processing under the provisions of PP # 4313.

2.  The evidence or record clearly shows that the applicant was terminated from the Reconciliation Service Program by the Selective Service System and that he did not earn entitlement to a Clemency Discharge under the terms of PP # 4313. 

3.  In the opinion of the Board, notwithstanding the community service documents submitted by the applicant in support of his request, his failure to abide by the pledge he made during his discharge processing, eliminates his entitlement to a Clemency Discharge under the provisions of PP # 4313.  In addition, even had the applicant earned entitlement to a Clemency Discharge under the provisions of PP # 4313, this factor alone does not automatically mandate an upgrade to the discharge under review. 

4.  After carefully evaluating the evidence submitted by the applicant and the evidence of record in this case, the Board finds that the applicant’s discharge processing was conducted in accordance with law and regulations applicable at the time and that the character of his discharge is commensurate with his overall record of military service.  Therefore, the Board concludes that the requested relief is not warranted.

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

__mdm__  ___js ___  ___kah __  DENY APPLICATION

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

INDEX

CASE ID	AR1999034115	
SUFFIX		
RECON		
DATE BOARDED	2000/08/10	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/01/16	
DISCHARGE AUTHORITY	AR PP # 4313	
DISCHARGE REASON	Good of the Service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.