IN THE CASE OF: BOARD DATE: 22 August 2018 DOCKET NUMBER: AR20160011291 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 IN THE CASE OF: BOARD DATE: 22 August 2018 DOCKET NUMBER: AR20160011291 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. IN THE CASE OF: BOARD DATE: 22 August 2018 DOCKET NUMBER: AR20160011291 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 and a personal appearance Board hearing. 2. The applicant states he was issued a clemency discharge in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation Number 4313. He was told by the Department of Veterans Affairs that the clemency discharge is no good because his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows his characterization of service as under other than honorable conditions. 3. The applicant provides no additional evidence. 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 enlisted in the Regular Army on 29 September 1969 for a period of 2 years. 3. On 12 March 1970, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 8 January 1970 to 3 March 1970. 4. On 17 July 1972, he was convicted by a general court-martial of being AWOL from 26 May 1970 to 23 May 1972. He was sentenced to confinement at hard labor for 1 year, forfeiture of all pay and allowances, reduction to E-1, and a bad conduct discharge. On 18 August 1972, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 8 months, and forfeiture of all pay and allowances. 5. The U.S. Army Court of Military Review is not available for review. However, Headquarters, U.S. Disciplinary Barracks, General Court-Martial Order Number 1246, dated 30 October 1972, shows the applicant's sentence had been finally affirmed, Article 71(c) had been complied with, and the bad conduct discharge would be executed. 6. He was issued a bad conduct discharge on 20 November 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of court-martial. He completed 8 months of creditable active service with 907 days of lost time. Item 13a (Character of Service) of his DD Form 214 shows the entry "UNDER CONDITIONS OTHER THAN HONORABLE." 7. His records contain: a. A DD Form 215 (Correction to DD Form 214), dated 22 October 1976, amending item 30 (Remarks) by adding the entry "DD [Form] 1953A Clemency Discharge [Certificate] issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation [Number] 4313." b. A letter, dated 9 November 1976, stating he completed his alternate service pursuant to Presidential Proclamation 4313 of 16 September 1974. 8. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. a. Paragraph 3-7a provides 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. 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. c. Chapter 11, in effect at the time, stated a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. The clemency discharge was created by the President on 16 September 1974 in Proclamation 4313, "Announcing a Program for the Return of Vietnam Era Draft Evaders and Military Deserters." Upon issuance to individuals who have an undesirable discharge or a punitive discharge, a clemency discharge serves as a written testimonial to the fact that the individual has satisfied the requirements of the President's program and has fully earned his/her return to the mainstream of American society in accordance with that program. 4. The clemency discharge is a neutral discharge, neither honorable nor less than honorable. It does not effect a change in the characterization of the individual's military service as having been under other than honorable conditions, nor does it serves to change, seal, erase or in any way modify the individual's past military record. Therefore, if the underlying discharge was issued as a result of a general court-martial, the issuance of a clemency discharge does not subject the underlying characterization to review under Title 10, U.S. Code, section 1553 (Review of discharge or dismissal). 5. Army Regulation 15-185 (ABCMR) states Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. While it is notable the applicant successfully completed his alternate service, the fact that he did so was the only reason his bad conduct discharge was changed to a clemency discharge. The clemency discharge is a neutral discharge, neither honorable nor less than honorable. The issuance of a clemency discharge does not subject the underlying characterization to review under Title 10, U.S. Code, section 1553, if the underlying discharge was issued as a result of a general court-martial. 2. The fact that he successfully completed his alternate service does not mitigate the fact that he was AWOL for 2 years. 3. His trial by court-martial was warranted by the gravity of the offense charged. His record of service included one nonjudicial punishment, one general court- martial conviction, and 907 days of lost time. 4. His conviction and discharge were effected in accordance with applicable law and regulations and the type of discharge appropriately characterizes the misconduct for which he was convicted. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 6. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. In this case, the evidence in the applicant's record was sufficient to adjudicate the case without a personal appearance hearing. //NOTHING FOLLOWS// ABCMR Record of Proceedings Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011291 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011291 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2