BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20160000997 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: 26 January 2017 DOCKET NUMBER: AR20160000997 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 to amend the decision of the ABCMR set forth in Docket Number AR2003094795 on 27 April 2004. _____________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: 26 January 2017 DOCKET NUMBER: AR20160000997 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 reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states, in effect: * he was not treated honestly with the last decision made in his case * he did not collect all of his records * there has been an upgrade of discharges for the last 15 years and he was not given a chance to receive one * he also states he would like another chance to better himself and his life by upgrading his discharge * he believes the records are in error because of “President Jimmy Carter’s S.1307” which went into law October 1977 3. The applicant provides a self-authored statement. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2003094795 on 27 April 2004. 2. The applicant was inducted into the Army of the United States on 2 February 1971. 3. He completed his training at Fort Polk, Louisiana, and was transferred to Fort Hood, Texas, for duty as a heavy vehicle driver. He was advanced to pay grade E3 on 13 August 1971. 4. On 29 September 1971, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 7 September to 15 September 1971. His punishment consisted of a forfeiture of pay (suspended for 30 days) and extra duty. 5. On 18 January 1972, NJP was imposed against him for speeding. His punishment consisted of a forfeiture of pay and extra duty. 6. The applicant was advanced to pay grade E-4 on 23 February 1972 and on 15 July 1972, he again went AWOL and remained absent until he was returned to military control on 7 August 1972. He again departed AWOL on 14 August 1972 and remained absent until he was apprehended by civil authorities in Midland, Texas, on 11 January 1973 and was returned to military control at Fort Hood, where charges were preferred against him on 29 January 1973. 7. On 30 January 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also acknowledged that he understood he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further elected to submit a statement in his own behalf wherein he asserted that he had received nonjudicial punishment on three occasions and that he did not like being around a lot of people and felt that he was treated poorly. He also stated that he could not adjust to Army life, did not want to lose his wife, and that a discharge would be best for his marriage. 8. The separation authority approved his request on 20 February 1973 and directed that he be issued an Undesirable Discharge Certificate. 9. Accordingly, he was discharged under other than honorable conditions on 20 February 1973, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 6 months and 15 days of total active service and had 186 days of lost time due to AWOL and confinement. 10. On 24 August 1977, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge under the Special Discharge Review Program (SDRP). On 13 December 1977, the ADRB determined that he had been properly and equitably discharged and denied his request for an upgrade of his discharge. The applicant again applied to the ADRB in 1991 and was granted a personal appearance before that board. However, he failed to respond to the notification letter and his request was administratively closed in May 1991. 11. On 5 July 2003, he applied to the ABCMR for an upgrade of his discharge. On 27 April 2004, the Board determined that the overall merits of his case were insufficient as a basis for correction of the record. 12. On 19 April 2009, the applicant applied for a reconsideration of ABCMR Docket Number AR2003094795, dated 27 April 2004. The case was administratively closed on 19 August 2009. 13. In a self-authored statement he states: * at the time he was drafted into the Armed forces he was only nineteen years old * his girlfriend at the time was pregnant with his first child, and it was hard to be away for 2 years * he recently graduated from high school and did not know how to handle so much responsibility * stories that were told by Soldiers about other Soldier’s heads, ears, and other body parts being cut off were enough to make him go out of his mind * there were also a lot of racist things going on in his unit at the time REFERENCES: 1. Army Regulation 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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. Presidential Proclamation 4313 was implemented on 16 September 1974, by then President Ford. While the applicant may have been eligible for this program, there is no evidence that he ever applied for the program or completed any of the required alternate service. The program is no longer available, and even if the applicant had fulfilled the requirements, the clemency discharge would not have affected his underlying discharge and would not have entitled him to any VA benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000997 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000997 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2