MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           2 May 2002                  
	DOCKET NUMBER:   AR2001065906

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		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 to general.

APPLICANT STATES:  He states that he knows what he did was wrong, but the President pardoned some who left the country to avoid the draft.  He has been a law-abiding citizen and wants to be buried as a veteran.

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

The applicant was inducted on 17 February 1959 at the approximate age of 20 years and 4 months and an 11th grade education.  He completed training as an infantryman and was assigned to the 3rd Infantry Regiment, “The Old Guard”.

A special court-martial convicted him of a 59-day absence without leave (AWOL) and following the sentenced confinement, he was transferred to Fort Ord, California where he was convicted of another AWOL.  

An 8 July 1960 psychiatric examination produced a diagnosis of chronic, moderately severe emotional instability reaction, but found no disqualifying mental or physical defects requiring processing through medical channels.  The applicant was considered to be able to distinguish right from wrong and to adhere to the right.  He could understand and participate in separation processing and any further rehabilitation was expected to be ineffective.  Administrative separation was recommended.

On 25 July 1960 the applicant acknowledged proposed elimination under the provisions of Army Regulation 635-208.  He waived his rights to consult with and be represented by legal counsel and to have his case considered by a board of officers.  He also acknowledged that he understood the meaning and consequences of the other than honorable discharge he might receive.  The immediate and intermediate commanders recommended an undesirable discharge.

A 2 August 1960 separation medical examination found him qualified for separation with a physical profile of 111113. 

The separation authority approved the recommendation and directed that an undesirable discharge be issued.  On 18 August 1960 the applicant was discharged under the provisions of Army Regulation 635-208.  He had 11 months and 25 days of creditable service and 189 days lost time due to AWOL and confinement.  

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation precludes the setting of arbitrary standards, such as a certain number of trials by courts-martial, as a prerequisite to administrative elimination.  If examination by a medical officer or psychiatrist indicated the existence of a mental or physical disability was the cause of unfitness, a board of medical officers was to be convened.  An undesirable discharge was normally considered appropriate for separation under the regulation; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the separation authority.

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 restitution program specifically designed for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights.  The clemency discharge did not effect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.  Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial.

 Webster's New World Dictionary defines amnesty as pardoning or deliberately overlooking an offense.  Pardon means to release from punishment, to cancel or to not enact punishment.
 
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory, it is concluded:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The applicant's assertion that he has been a law-abiding citizen since discharge is accepted as an implied argument that clemency is appropriate based upon his post-service behavior and conduct.  However, the applicant provide no evidence of any such post-service factors that might be weighed against his misconduct of record and his overall military record which is devoid of noteworthy redeeming service.

3.  The Board notes that Presidential Proclamation 4313 provided a mechanism whereby former service-members could earn a clemency discharge and it is common knowledge that Presidents Ford and Carter both authored programs of conditional and/or unconditional amnesty programs for draft evaders and deserters. These programs essentially forsook future prosecutions.  However, such considerations are irrelevant to the applicant's pre-Vietnam era period of service.  Furthermore, forgiving transgressions from prosecution or punishment is quite different from granting recognition and entitlements that have been forfeited by misconduct.

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 the aforementioned requirement.

5.  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

__FNE__  ___WTM_  __CJP___  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON		
DATE BOARDED	20020302	
TYPE OF DISCHARGE	UD)	
DATE OF DISCHARGE	19600818	
DISCHARGE AUTHORITY	AR635-208 .  .  .  .  .  	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A92.21	
2.		
3.		
4.		
5.		
6.