IN THE CASE OF: BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20150005593 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his undesirable discharge to an honorable or general discharge. 2. The applicant states, in effect, his service was not undesirable. He was discriminated against by his fellow "petty officers." Due to hate and racism he was unable to face the people he considered his leaders. Under the Nixon Act (presumed to mean Presidential Proclamation 4313) he is eligible for an upgrade of his undesirable discharge to an honorable or a general. He is black and Filipino and he was hated from day one. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations. 2. The applicant was inducted into the Army of the United States, in pay grade E-1, on 21 August 1969. He did not complete advanced individual training for award of a military occupational specialty. 3. He was reported absent without leave (AWOL) on 19 November 1969 and was dropped from the rolls (DFR) of his organization on 19 December 1969. 4. On 8 July 1970, he was convicted by a special court-martial of one specification of being AWOL from 19 November 1969 through 15 June 1970. He was sentenced to confinement at hard labor for 5 months and a forfeiture of $50.00 pay for 5 months. 5. On 27 July 1970, the convening authority affirmed his sentence and ordered it executed. 6. On 3 September 1970, the convening authority suspended the unexecuted portion of his sentence to confinement at hard labor until 16 October 1970. 7. He was again reported AWOL on 27 September 1970 and he was carried in a DFR status on 26 October 1970. 8. On 19 March 1973, in the Superior Court of California, County of San Joaquin, the applicant pled guilty and was convicted of the felony charge of "Possession of Narcotic, Heroin." He was sentenced to 270 days in the country jail and 5 years on probation. 9. A letter dated 19 April 1973, subject: Separation for Civilian Conviction Under the Provisions of Army Regulation (AR) 635-206((Personnel Separations – Discharge – Misconduct) shows the applicant was advised he was being considered for separation because of a civilian conviction and that he could be issued an Under Other Than Honorable Discharge Certificate. He was also advised of his rights. 10. On 19 April 1973, the applicant acknowledged receipt of the proposed separation action. He waived his right to counsel and acknowledged he understood he could be discharged under conditions other than honorable and the issuance of such a discharge. He did not submit a statement in his own behalf. Additionally, he acknowledged that he understood he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life. 11. On 25 June 1973, the applicant's company commander, recommended the applicant appear before a board of officers to determine whether he should be discharged under the provisions of AR 635-206. The company commander stated the applicant was presently serving an established sentence at the San Joaquin County Jail with a tentative release date of 21 August 1973. It was felt that the best interest of the Army would be served by the applicant's separation. The commander recommended the applicant be issued an Undesirable Discharge Certificate. 12. On 19 July 1973, the separation authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate. 13. He was discharged accordingly on 25 July 1973, in pay grade E-1. He was credited with completing 6 months and 4 days of net active service and he had 1,213 days of lost time. His service was characterized as under conditions other than honorable conditions and he was issued an Undesirable Discharge Certificate. Item 11c (Reason and Authority) of his DD Form 214 lists the entry, "AR 635-200, SPN 284." 14. On 8 November 1979, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 15. AR 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct. The regulation provided, in pertinent part, for the separation of personnel for conviction by a civil court. An undesirable discharge was normally considered appropriate. 16. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. Paragraph 3-7b – a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 17. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. However, at the time of the applicant's discharge, the separation program number (SPN) of "284" applied to persons who were discharged for "conviction by civil court." 18. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and 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. 19. Alternate service was to be performed under the supervision of the Selective Service System (SSS). When the period of alternate service was completed satisfactorily, the SSS would notify the individual's former military service. The military services issued the actual clemency discharges. The clemency discharge was a neutral discharge, neither honorable nor less than honorable. The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Department of Veterans Affairs (VA). Soldiers who were AWOL entered the program by returning to military control and accepting a discharge for the good of the service in lieu of trial by court-martial. DISCUSSION AND CONCLUSIONS: 1. The applicant was convicted by a civilian court and was sentenced to serve 270 days in civilian confinement and 5 years on probation. He acknowledged receipt of the proposed separation action and that he could be issued an undesirable discharge. The separation authority approved his discharge and he was discharged accordingly. 2. He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge. There is also no evidence he was hated and discriminated against because of his race during his period of service. His administrative discharge was accomplished in compliance with applicable law and regulation in effect at the time with no indication of procedural error which would have jeopardized his rights. 3. The characterization of his discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time. Without evidence to the contrary, he was properly discharged in accordance with pertinent regulations with due process. 4. Presidential Proclamation 4313 provided for the issuance of a clemency discharge to members of the Armed Forces who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. Soldiers who were AWOL entered the program by returning to military control and accepting a discharge for the good of the service in lieu of trial by court-martial. Completing the requirements of the program provided for a clemency discharge, not a general or an honorable discharge. It would have restored his civil rights, but not changed his underlying discharge and would not have entitled him to any benefits administered by the VA. 5. There is no evidence he met the criteria for a discharge for the good of the service pursuant to Presidential Proclamation 4313 at the time of his undesirable discharge on 25 July 1973. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ __X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150005593 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005593 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1