MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  4 August 1999                           
	DOCKET NUMBER:   AR1999020375

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. John H. Kern		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD). 

APPLICANT STATES:  In effect, he would like to have his UD upgraded as a result of being granted clemency under the provisions of Presidential Proclamation 4313 (PP 4313).  He submits a copy of DD Form 215 (Correction to the DD Form 214, Report of Separation from Active Duty), a copy of his DD Form 214, and a copy of the PP4313 certificate.

COUNSEL STATES:  That the applicant's record is incomplete, however, the records that are available indicate that he spent 5 months of his service in the Republic of Vietnam (RVN).  He was discharged under the provisions of chapter 10, after a short period of being absent without leave (AWOL).  Further, the character of his discharge is too harsh.  He was AWOL for only 43 days.  His overall service was honorable and his ninth grade education may have been a factor in the lack of his use of judgement.

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

He successfully completed a previous term of enlistment from 22 January-
25 November 1970 and was honorably discharged.  He immediately reenlisted on 26 November 1970 for 3 years and his previous military occupational specialty (MOS) 11B (Infantryman).

Evidence of record also shows he served in the RVN from 25 November 
1970-17 May 1971.  He also had two periods of AWOL from 5 - 7 September 1970 and from 24 August - 4 October 1971.

The applicant's record is void of the facts and circumstances surrounding the discharge process.  However, the record does contain a properly constituted 
DD Form 214.  He signed that document at the time of separation.

The DD Form 214 shows that the applicant was separated on 29 November 1971 under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in-lieu of trial by court-martial with a UD.  He had completed 
10 months and 23 days of creditable active service during the period under review.  He also had completed 10 months and 3 days of prior active service and he had 43 days lost time.

On 16 September 1974, PP 4313 was established.  The record indicates the applicant either applied on his own or he was notified by the Government that he might qualify for a Clemency Discharge under the provisions of PP 4313.  The record shows that on 26 January 1976, he was awarded a Clemency Discharge under the provisions of PP4313. 
In April 1976, the applicant made application to the Army Discharge Review Board (ADRB).  On 19 August 1977, he was notified that his Official Military Personnel File (OMPF) contained insufficient records on which the ADRB could base a decision.  Further, he was notified that he could make a personal appearance before the board or that he could submit additional documentation.  He failed to respond to the notification letter.  His case was closed and his OMPF was returned without action.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a UD is normally considered appropriate.

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.  In the absence of the facts and circumstances surrounding the discharge and evidence of an error or injustice in the discharge process, the Board must presume regularity in the discharge process.

3.  The Board took into consideration the applicant's entire service record and the offenses for which he was discharged.  However, his service was not found to be sufficiently meritorious as to warrant an upgrade in the characterization of service.

4.  Additionally, the Board found no evidence that the applicant's level of education was any less than his peers who successfully completed their service obligation.

5.  The applicant's Clemency Discharge, while commendable, does not overcome the negative factors in his records or the discharge action by the Army. Therefore, no basis has been established to upgrade his UD.  

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

FKM____  GDP____  JHK_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR199902375	
SUFFIX		
RECON		
DATE BOARDED	19990804	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19711129	
DISCHARGE AUTHORITY	AR635-200, CH 10 	
DISCHARGE REASON	For the convenience of the government 	
BOARD DECISION	(NC)	
REVIEW AUTHORITY	Director	
ISSUES         1.	A71.00	
2.	A92.17	
3.		
4.		
5.		
6.