IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20170013968 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration 1. IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20170013968 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. 2. The applicant states his clemency discharge was supposed to be upgraded. He contends he has a letter stating his "discharge can be upgraded after successful completion of reconciliation." THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * Honorable Discharge Certificate, issued on 3 December 1969 * Clemency Discharge Certificate, issued on 29 January 1975 * DD Form 214 (Report of Separation from Active Service) for the period 4 December 1962 to 29 January 1975 * Selective Service System Reconciliation Service Certificates of Completion and letter, issued in December 1975 * DD Form 215 (Correction to DD Form 214), dated 4 December 1975 * Cold War Certificate of Recognition 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * Certificate of Service, dated 9 August 1960 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 3 February 1958 to 22 January 1960 * DD Form 214 for the period 17 December 1960 to 3 December 1962 * DD Form 4 (Enlistment Record – Armed Forces of the United States), dated 4 December 1962 * three DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) Enclosure 2 * memorandum issued by the 6th Armored Calvary Regiment, Fort Mead, MD, dated 14 November 1967, subject: Unit Commander's Action Regarding AWOL (absent without leave)/Desertion * Special Orders Number 20, issued by the U.S. Army Administration Center, Fort Benjamin Harrison, IN, dated 29 January 1975 * Enlisted Statement – Request for Discharge for the Good of the Service, dated 29 January 1975 * Army Discharge Review Board (ADRB) Case Report and Directive REFERENCES: 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. 2. 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 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. The ADRB, as a matter of policy, considered a clemency discharge as sufficient new evidence to authorize a rehearing of the case; however, the clemency discharge carried no automatic upgrade or any other impact on the ADRB evaluation process. 3. Army Regulation 635-200 (Active Duty Enlisted Administration Separations) governs the policies and procedures for the 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. 2 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. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. DISCUSSION: 1. While 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. A Certificate of Service, dated 9 August 1960, shows the applicant enlisted in the New Mexico Army National Guard on 2 April 1954 and was honorably discharged from the New Mexico Army National Guard on 1 December 1956 and transferred to the U.S. Army Reserve (USAR). 3 3. A DD Form 214 shows the applicant was inducted in the Army of the United States on 3 February 1958. He was honorably released from active duty and transferred to the USAR on 22 January 1960. 4. The applicant enlisted in the Regular Army on 17 December 1960. He was honorably discharged on 3 December 1962 for the purpose of immediate reenlistment. He reenlisted in the Regular Army on 4 December 1962 for a period of 6 years. 5. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 10 June 1963, for operating a vehicle in a reckless manner * 5 October 1964, for failing to go at the time prescribed to his appointed place of duty * 18 July 1966, for disobeying a lawful order 6. The applicant's records contain a memorandum issued on 14 November 1967, by the 6th Armored Calvary Regiment, Fort Mead, MD, subject: Unit Commander's Action Regarding AWOL/Desertion. This document shows he departed AWOL on 2 November 1967. 7. Special orders issued on 29 January 1975, by U.S. Army Administration Center, Fort Benjamin Harrison, IN, show the applicant returned to military control on 29 January 1975. 8. The applicant's records include an Enlisted Statement – Request for Discharge for the Good of the Service, dated 29 January 1975, which shows that after consulting with legal counsel and being advised of the nature of the offenses for which he could be tried, the maximum permissible punishment that could be imposed, the possible consequences of an undesirable discharge, the nature and effect of his pledge to perform alternative service, and of the procedures and rights available to him, he voluntarily requested discharge for the good of the service under the provisions of PP 4313, dated 16 September 1974. 9. In his request for discharge, he acknowledged he understood that his absence was characterized as willful and persistent unauthorized absence which rendered him triable under the UCMJ and could have led to the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that he would be discharged under other than honorable conditions and would receive an undesirable discharge, and that he was advised of and understood the adverse nature of such a discharge and the possible consequences thereof. 4 He further confirmed his understanding that as a result of the issuance of an undesirable discharge, he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the Veterans Administration, that he would be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge. 10. The applicant was discharged on 29 January 1975, under the provisions of PP 4313, with a character of service of under other than honorable conditions. His DD Form 214 shows he was credited with 9 years, 5 months, and 10 days of active service and that he accrued 2,641 days of time lost. Item 27 (Remarks) indicates he had agreed to serve 8 months of alternate service. 11. The applicant provided and his records contain Selective Service System Reconciliation Service Certificates of Completion and a Selective Service System letter confirming he completed the assigned period of alternate service in the Reconciliation Service Program entitling him to consideration for a clemency discharge. His records also include a DD Form 215 that confirms he was issued a Clemency Discharge Certificate in recognition of satisfactory completion of alternate service pursuant PP 4313. 12. On 7 December 1978, the ADRB, after careful consideration of the applicant’s military records and all other available evidence, determined he had been properly and equitably discharged. The ADRB voted to deny his request for a change to the characterization of his service. 13. There is no evidence in the applicant's available records that shows he was informed that clemency discharges would be automatically upgraded. 14. The evidence shows that during the period of service under review, the applicant accepted NJP on three occasions and accrued 2,641 days of lost time due to AWOL. He opted to submit a request for discharge for the good of the service and for participation in the alternate service program in lieu of trial by court-martial. 15. Under the provisions of PP 4313, he was required to commit serve some form of alternate service, which the evidence shows he completed. However, completing the requirements of the program provided for a clemency discharge and did not affect the underlying discharge. 16. The evidence confirms the applicant's separation processing under PP 4313 was accomplished in accordance with the applicable laws and regulations. All 5 requirements of law and regulation were met and his rights were protected throughout the separation process. //NOTHING FOLLOWS// 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20170013968 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. 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. Enclosure 1