MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 February 1999                   
	DOCKET NUMBER:   AR1999014826

	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. Loren G. Harrell		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Patrick Bogenberger 		Chairperson	
	Mr. Gary F. Geraets 		Member	
	Mr. Elzey J. Arledge 		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 “. . . dishonorable discharge [be upgraded] to an honorable, or general discharge (under honorable conditions) under the Vietnam Amnesty pardon [program].”  The applicant does not have a dishonorable discharge; he has an undesirable discharge that was issued on 10 September 1973

APPLICANT STATES:  In effect, that his discharge should have been changed to honorable pursuant to the Vietnam Amnesty Program.  He adds that he has been unable to become an American citizen because of his discharge.

COUNSEL CONTENDS:  In effect, that the applicant should have received an amnesty discharge.

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

An alien resident of the United States and a citizen of Jordan, he was inducted into the Army of the United States for 2 years on 12 August 1968.  On 16 August 1968, he enlisted in the Regular Army for 3 years.  He was trained as a stock control and accounting specialist and sent to Germany in January 1969.  Shortly after his arrival in Germany, he was granted an emergency leave to go to Amman, Jordan.  When his leave expired, he did not return to his unit and he was listed as AWOL from 28 March 1969.  He was dropped from his unit’s rolls as a deserter on 26 April 1969.

On 24 May 1973, the US Army Enlisted Records Center, Fort Benjamin Harrison, Indiana, wrote to the applicant informing him that he would be discharged in absentia with an undesirable discharge.  He responded on 20 June 1973 stating that he had nothing against the Army, but his mother did not want him to leave her side or serve in the US military.  His undesirable discharge was issued on 10 September 1973 under the provisions of Department of the Army (DA) Message #161800Z July 1973.  He had only 7 months and 16 days of creditable service and 1,623 days of lost time due to AWOL (868 days prior to his expiration term of service [ETS] date, and 755 days subsequent to his normal ETS date).

DA Message 161800Z Jul 73 stated, in pertinent part, that alien members of the Armed Forces of the United States would be discharged in absentia with a UD provided their absence is greater than 1 year, they are known to be residing in a foreign country, and notification requirements have been met.

Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals:  fugitives from justice who were draft evaders; members of the Armed Forces who were in an AWOL status; and prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of Articles 85, 86, or 87 of the Uniform Code of Military Justice. The last group could apply to the Presidential Clemency Board which was made up of individuals (civilians, retired military and members of the Reserve Components) who were appointed by the President to make a determination regarding the performance of alternate service and the issuance of a clemency discharge.  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 (SSS).  When the period of alternate service was satisfactorily completed, the SSS notified the individual's former military service.  The military service then issued the actual clemency discharge.  The clemency discharge is a neutral discharge, issued neither under "honorable conditions" nor under "other than honorable conditions."  It is to be considered as ranking between an undesirable discharge and a general discharge.  A clemency discharge does not effect 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, and advisory opinion(s), it is concluded:

1.  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 the aforementioned requirement.

2.  The applicant did not return to military control and was discharged in absentia on 10 September 1973.  In order to receive a Clemency Discharge under the provisions of Presidential Proclamation 4313, the applicant would have had to apply for the program; there is no indication that he ever did so and the program is now closed.

3.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record of military service.

4.  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

___PB   _  __GFG __  __EJA __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014826	
SUFFIX		
RECON		
DATE BOARDED	19990210	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730910	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.