ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20170009748 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States * DD Form 214 (Report of Separation from Active Duty) * DD Form 258A (Undesirable Discharge Certificate) * Selective Service System Letter/Agreement * Reaffirmation of Allegiance and Pledge to Complete Alternate Service * Copy of Request for Discharge for the Good of the Service * Rank Reduction Orders * Special Orders Number 206 – Return from absent without leave (AWOL) * Discharge Orders FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states being a conscientious objector, he, under good conscience, was not able to perform his military service on the grounds of freedom of thought, conscience, disability, and/or religion. He was placed in a hospital to complete his military duties, which he served 20 months of the 24 months. He was discharged with an undesirable discharge due to the fact he was also indigent at the time and unable to reach his financial military obligation. He believes he has completed his obligation to the United States Army to the best of what he could, under the circumstances at hand. He also believes he should be considered for a change to his military discharge from undesirable to general/ under Honorable conditions and issued a new DD Form 214 stating the fact. 3. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 20 August 1969. b. He served overseas in Vietnam from 9 January 1970 until 27 January 1970. c. He departed his unit in an absent without leave (AWOL) status on or about 27 January 1970 and did not return to military control until 7 March 1970. d. On or about 18 March 1970, the applicant departed his unit in an AWOL status and did not return to military control until 7 October 1974. e. The Joint Alternate Service Board established by Presidential Proclamation 4313, convened and determined that the applicant was eligible for this program and was required to serve 24 months of alternate service. f. On 8 October 1974, after consulting with counsel, the applicant requested a discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313, dated 16 September 1974. By requesting this he agreed to and understood the following: * he was making this request of his own free will and have not been subject to any coercion whatsoever by any person * that he will be discharged under other than honorable conditions and furnished and undesirable discharge certificate * that issuance of such a discharge, he will be deprived of all service benefits, and that he will be ineligible for all benefits administered by the Veteran’s Administration * that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge g. On 8 October 1974, the applicant pledged to reaffirm his allegiance to the United States of American by agreeing to complete 24 months of alternate service. h. He was discharged on 8 October 1974. His DD Form 214 shows he was discharged for the good of the service by reason of a willful and persistent unauthorized absence pursuant to Presidential Proclamation #4313, and issued an undesirable conditions discharge. He completed 5 months and 7 days net service this period with 568 days of lost time prior to his normal expiration of term of service and 1,142 days lost after normal expiration of term of service 19 August 1971. i. On 12 August 1976, he was provided with a copy of his Certificate of Completion (SSS Form RS-2) indicating that he satisfactorily completed the assigned period of alternate service in the Reconciliation Service Program and was issued a DD Form 215 which added to item 27 (Remarks) of his DD Form 214 the item “DD 1953A Clemency Discharge issued pursuant to Presidential Proclamation No 4313.” 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation a member who has committed an offense of offenses, the punishment for any of which, under the Uniform Code of Military Justice and Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for the good of the service 6. Presidential Proclamation 4313 was issued by President Ford and affected three different groups of individuals. For those who elected discharge, a period of alternate service was to be performed. If they successfully completed the alternate service, they would be entitled to receive a clemency discharge. The clemency discharge did not affect the underlying discharge and did not entitle the member to any benefits administered by the VA. 7. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Board members noted that the applicant committed to completing community service/alternate service and he did; that is how he received a clemency discharge. The Board did consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance and voted to deny. However, based upon the lengthy period of lost time within the service record of the applicant, the Board concluded that the characterization of service received at the time of discharge was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation provides that a member who has committed an offense of offenses, the punishment for any of which, under the Uniform Code of Military Justice and Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for the good of the service. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. If warranted, however, the discharge authority may direct an honorable or general discharge. 3. Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals. One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted. For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge. The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration (VA). Rather, it restored federal and, in most instances, state civil rights that may have been denied due to the less than honorable discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court- martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170009748 4 1