IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150008785 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 under other than honorable conditions (UOTHC) discharge to a general discharge. 2. He states, in effect, that he was granted amnesty but unfortunately he never filled out the forms. He is a productive citizen and has completely changed his life. He is currently Chief Magistrate of the Metlakatla Trial Court, and has been a Magistrate for 8 years. He is interested in his citizenship and would appreciate consideration in changing his discharge, which would enable him to become a citizen. 3. He provides his selective service system card. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 this case 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 for timely filing. 2. On 16 September 1974, President Gerald Ford issued Presidential Proclamation 4313, followed by Executive Order 11803, wherein he established a clemency board to review certain convictions under the Military Selective Service Act and the Uniform Code of Military Justice (UCMJ). Those persons convicted under the UCMJ for Article 85 (Desertion), Article 86 (Absent without Leave), or Article 87 (Missing Movement) between 4 August 1964 to 28 March 1973 could have their cases reviewed by the clemency board and have clemency recommended. This clemency was conditional, however, upon completion of alternative service. 3. The record indicates the applicant’s misconduct began in May 1973, after the inclusive period of Presidential Proclamation 4313. Accordingly, the issue of amnesty will not be discussed any further in these proceedings. 4. On 5 December 1972, he was inducted into the Army of the United States. 5. On 1 June 1973, he received nonjudicial punishment (NJP) for absenting himself without authority from his place of duty from 22 May to 23 May 1973. His punishment was of $50.00 per month for 1 month and 7 days extra duty. He did not appeal the punishment. 6. On 24 July 1973, he received NJP for absenting himself without authority from his place of duty from 7 July to 9 July 1973. His punishment was of $75.00 per month for 1 month and restriction to the company area for 14 days. He did not appeal the punishment. 7. A review of his record shows that, on 27 July 1973, he was charged with: * insubordinate conduct and failure to obey a lawful order * wrongful wear of uniform and 2 specifications of breaking restriction * failure to go to his appointed place of duty * failure to obey a lawful order 8. On 13 August 1973, he consulted with counsel who advised him of the implications of requesting discharge in lieu of court-martial under the provisions of Army Regulation 635-200, chapter 10. Counsel advised him that: * such a request was voluntary and that no person could make, force, or coerce him to ask for this discharge * he could only make the request because he was pending charges which authorized the imposition of a dishonorable or bad conduct discharge * he had the right to counsel * once submitted, he could withdraw the request only with the consent of the general court-martial convening authority 9. He acknowledged receipt of counsel's advice and a list of veterans' benefits that would be affected by issuance of an Undesirable Discharge Certificate. 10. On 16 August 1973, he submitted a Request for Discharge for the Good of the Service, and a statement, dated 13 August 1973. He stated: a. He was a Canadian citizen and came to the United States to finish his schooling. After graduation he was working as a heavy duty mechanic and signed up for the selective service because he was told that it was necessary for him to receive vocational training. His life had been ruined since being drafted. He felt discriminated against and had the attitude that the Army is not for him. b. His negative attitude and prediction of future problems as expressed in his statement indicated any effort toward rehabilitation would be unsuccessful. He desired to return to Vancouver where he had a job arranged and a fiancé that he planned to marry. 11. On 31 August 1973, the separation authority approved the applicant's request and directed he be given an UOTHC discharge. On 12 September 1973, he was discharged in accordance with the separation authority's decision. His DD Form 214 shows he completed 9 months and 5 days of net active service. 12. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could 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. Although an honorable discharge or general discharge is authorized, a discharge of UOTHC is normally considered appropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. The Army does not have nor has it ever had a policy to upgrade discharges for the purpose of obtaining citizenship. Each case is individually reviewed based upon its merits when an applicant requests a change in his or her discharge. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. Based on the applicant’s record of misconduct, he could have been tried by court-martial and punished with a punitive discharge under the UCMJ. 3. The available records indicate that all requirements of law and regulation were met and his rights were fully protected throughout his discharge processing. His record indicates he was well advised and fully aware of the consequences of his decision. Having accepted his request for discharge, the separation authority determined his service would be characterized as UOTHC. 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) AR20140011501 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008785 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1