BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150013418 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150013418 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150013418 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 clemency discharge. 2. The applicant states he got a Presidential Pardon in April 1975. (He was awarded a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974). 3. The applicant provides his Clemency Discharge Certificate and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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. The applicant was inducted into the Army of the United States on 19 November 1970. He was subsequently discharged on 24 November 1970 to enlist in the Regular Army (RA). He received a DD Form 214 crediting him with 6 days of active service. 3. He enlisted in the RA for a 3-year term on 25 November 1970. He completed training and he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic). 4. His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 17 March 1971 to 20 March 1971. The facts surrounding this AWOL and its disposition are not available for review. 5. He served in Germany from 11 May 1971 to 16 September 1971. He then served in Vietnam from 2 November 1971 to 18 August 1972. He was assigned to the 101st Aviation Battalion. 6. Following his Vietnam tour, he was reassigned to 2nd Battalion, 555th Air Defense Artillery at Fort Bliss, TX. While there, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for: * 2 November 1972, wrongfully possessing marijuana * 15 November 1972, absenting himself from his appointed place of duty 6. On 5 January 1973, he departed his unit in an AWOL status but he returned to military control on 29 January 1973. Then on 3 February 1973, he again departed his unit in an AWOL status and on the same date, he was dropped from the rolls as a deserter. Federal authorities apprehended him on 9 April 1973 in Hartsville, MO, and returned him to military control at Fort Leonard Wood, MO. 8. The complete facts and circumstances of the applicant's discharge processing are not available for review by the Board. However, his record contains: a. Special Orders Number 183, issued by Headquarters, U.S. Army Training Center, Engineer, Fort Leonard Wood, on 2 July 1973, discharging him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in the rank/grade of private/E-1, effective 3 July 1973, with an under other than honorable conditions characterization of service. b. A DD Form 214 that shows he was discharged on 3 July 1973 under the provisions of AR 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions characterization of service. He was issued an Undesirable Discharge Certificate. This form also shows he completed 2 years, 4 months, and 7 days of net active service and he had 91 days of lost time. 9. On 20 November 1975, by letter, he was notified that he had been awarded a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974. He was issued a Clemency Discharge Certificate together with a DD Form 215 (Correction to DD Form 214). He was advised that he may apply to the Army Discharge Review Board (ADRB) for a review and possible upgrade of his discharge. 10. There is no indication he petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200 sets forth the policy for administrative separation of enlisted personnel. a. Chapter 10 provides 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. However, an undesirable discharge was considered appropriate at the time the applicant was discharged. b. Paragraph 3-7a states that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b states 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 2. Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any Department of Veterans Affairs (VA) benefits. Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained. 3. A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as the PP 4313 Extension). This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) whose records were free of any compelling reason to deny relief. This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals. Whether the individuals had performed alternate service was not an issue to be considered. DISCUSSION: 1. The applicant's record is void of the facts and circumstances that led to his discharge. However, his record contains separation orders and a DD Form 214 showing he was discharged on 3 July 1973 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial with an under other than honorable conditions character of service. 2. The issuance of a discharge under the provisions of chapter 10, AR 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The applicant provided no information that would indicate the contrary. Further, it is presumed that the applicant's discharge accurately reflects his overall record of service which included 91 days of lost time. 3. The applicant appears to have applied for and received a clemency discharge under Presidential Proclamation 4313. The clemency discharge did not affect the underlying discharge and did not entitle him to any benefits administered by the VA. 4. In the absence of his complete separation packet and based on the available evidence, it appears the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel, thus rendering his service unsatisfactory. With 91 days of lost time and repeated offenses under the UCMJ for which he received Article 15s, his service did not conform to the standards of acceptable conduct for Soldiers required for an honorable or general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013418 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013418 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2