ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  30 September 2019

	DOCKET NUMBER:  AR20180003976


APPLICANT REQUESTS: The applicant, the former service member’s (FSM) 
widow, requests correction of the FSM's record to change his under other than 
honorable conditions discharge to an honorable discharge.


APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Presidential Pardon Certificate, dated 22 October 1975
*	Marriage Certificate, dated 7 April 1997
*	FSM Death Certificate, dated 22 February 2017
*	Veterans Affairs (VA) letter, dated 29 September 2017

FACTS:

1.  The applicant states the FSM received a full pardon from President G- F-.

2.  A review of the FSM’s official records shows:

*	16 July 1968 – the FSM enlisted in the Regular Army
*	DA Form 20 (Enlisted Qualification Record), item 44 (Time Lost under Section 
972, Title 10, USC and Subsequent to Normal Date Expiration Term of 
Service) –

*	2 December 1968 – 16 February 1969; Absent Without Leave (AWOL)
*	17 March – 1 April 1969; AWOL
*	5 April – 5 June 1969; AWOL
*	6 June – 27 July 1969; AWOL
*	29 July 1969 – 19 January 1970; AWOL
*	15 May 1970 – the Senior Commander, U.S. Army Training Center Engineer 
and Fort Leonard Wood, MO, arraigned and tried the FSM for violation of 
Article 86, Uniform Code of Military Justice, for the aforementioned periods of 
AWOL, and he was found guilty of all specifications and sentenced to –

*	forfeiture of all pay and allowances
*	confined at hard labor for 15 months
*	reduction to the lowest enlisted grade
*	dishonorable discharge 

*	22 January 1971 – the Senior Commander, Fort Leonard Wood, MO 
approved a sentence to a bad conduct discharge, confinement at hard labor 
for 9 months, and forfeiture of $85.00 per months; the FSM’s case was sent 
to the U.S. Army Court of Military Review
*	8 March 1971 – Letter Orders Number 3-21, issued by the U.S. Army Training 
Center and Fort Leonard Wood, MO, placed the FSM on excess leave 
pending review of his case by the U.S. Army Court of Military Review
*	2 June 1971 – the FSM’s sentence was ordered to be duly executed
*	8 June 1971 – the FSM was discharged with an under conditions other than 
honorable characterization of service under the provisions of Army Regulation 
(AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11
*	10 December 1975 – DD Form 215 (Correction to DD Form 214 (Report of 
Separation from Active Duty) was issued showing a clemency discharge was 
issued pursuant to Presidential Proclamation Number 4313
*	21 January 1976 – the Chief, Notification Division, U.S. Department of 
Justice, Office of the Pardon Attorney, issued a letter to the FSM advising him 
he could apply for a discharge upgrade to the Army Discharge Review Board 
(ADRB)
*	the FSM’s records are void of any documentation showing he applied for an 
upgrade to his discharge to the ADRB within the 15 year statute of limitations

3.  The applicant provides:

*	Pardon Certificate showing the FSM, having violated Article 86 of the Uniform 
Code of Military Justice and in furtherance of Presidential Proclamation 
Number 4313, was issued a full pardon
*	Marriage Certificate showing the applicant and FSM were married on 7 April 
1997
*	Death Certificate showing the FSM died on 15 February 2017 and the 
applicant was the informant
*	VA letter wherein the applicant was informed their decision was based upon 
the FSM’s period of service being dishonorable for VA purposes and she was 
not eligible for VA benefits, and only Veterans with honorable service were 
eligible for VA survivors pension or dependency and indemnity compensation

4.  AR 635-200, in effect at the time, states in chapter 11, an enlisted person will be 
given a dishonorable discharge pursuant only to an approved sentence of a general 
court-martial, after completion of appellate review and after such affirmed sentence 
has been ordered duly executed.

5.  Code of Federal Regulations (CFR) 32, section 724.112 states:

		a.  The clemency discharge was created by the President on 16 September 
1974, in his 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.

		b.  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 
serve 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 USC, section 1553.  


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The Board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement, and did not find any evidence of error, 
injustice, or inequity.  The Board found insufficient evidence of mitigating 
circumstances for the misconduct, nor did the Board find evidence of post-service 
honorable conduct that might have mitigated the discharge characterization.  The 
Board noted that the pardon he received did not effect a change in the portion of his 
court-martial sentence to a dishonorable discharge.  The Board agreed that the 
FSM's discharge characterization is appropriate for the misconduct.


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.  AR 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time 
states in chapter 11, an enlisted person will be given a dishonorable discharge 
pursuant only to an approved sentence of a general court-martial, after completion of 
appellate review and after such affirmed sentence has been ordered duly executed.

2.  CFR 32, section 724.112 states:

		a.  The clemency discharge was created by the President on 16 September 
1974, in his 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.

		b.  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 condition, 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 USC, section 1553.  

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.

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20180003976
	
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