MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            01 APRIL 2003                  
	DOCKET NUMBER:   AR2002077676

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas B. Redfern III		Member	
	Mr. Thomas E. O'Shaughnessy, Jr.		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:  Reconsideration of his request to have his undesirable discharge upgraded.

APPLICANT STATES:  That he is requesting that his discharge be upgraded because he received a full pardon from President Ford in 1975.  He also states that he was “not afforded proper representation” at the time of his discharge.  In support of his request he submits a copy of the presidential pardon.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized in a memorandum prepared to reflect the Board's original consideration of his case (AC80-00052) on 12 March 1980.

The applicant's submission of the presidential pardon and his contention that counsel did not properly represent him at the time of his discharge constitutes a new argument, which has not been previously addressed by the Board.

The applicant served on active duty between 24 February 1969 and 1 September 1971.  During that time the applicant accumulated more than 250 days of lost time, was convicted by one summary and one special court-martial and was punished numerous times under Article 15 of the Uniform Code of Military Justice.

In August 1971 after being charged with yet another period of being absent without leave, the applicant requested an administrative discharge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  In his request the applicant acknowledged that he had consulted with counsel and that he understood the nature and consequences of the undesirable discharge which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  

Included with the applicant’s request for separation was a statement authenticated by his legal counsel who certified that he had advised the applicant regarding his rights and that the applicant had personally made the choices indicated on his request for separation.

The applicant’s request was approved and he was issued an undesirable discharge certificate.

On 23 August 1975 the applicant was issued a “full pardon” certificate and a “grant of executive clemency” under the provisions of “Presidential Proclamation 4313.”

In 1978 and again in 1981 the Army Discharge Review Board denied the applicant’s petition to have his undesirable discharge upgraded.
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 (absent without leave) 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.

Army Regulation 635-200 sets 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 applicant’s contention that he was not afforded proper representation at the time of his discharge is not supported by the evidence available to the Board.  The Board notes that the applicant acknowledged in his request for an administrative discharge in lieu of trial by court-martial that he had consulted with counsel.  Additionally, the applicant’s records contain a document authenticated by his legal counsel attesting that the applicant was counseled and personally made his choice to request separation.

2.  While the applicant may have been granted a pardon under Presidential Proclamation 4313, the pardon was merely a grant of clemency, which restored the applicant’s civil rights.  The action did not affect the basis or character of an individual’s discharge and does not serve as a basis to justify upgrading the individual’s discharge at this time.

3.  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.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__AAO __  __TBR__  __TEO___  DENY APPLICATION

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

INDEX

CASE ID	AR2002077676	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030401	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.