RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060015055 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Antonio Uribe

Member

Mr. Rodney E. Barber

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge, under other than honorable conditions, be upgraded to a general discharge, under honorable conditions. 

2.  The applicant states, in effect, that he feels that the military let him down when they cancelled their contract with him to attend the crypto-electronics course at the U.S. Army Electronics School.  He also states, in effect, he was not given a discharge when he departed Fort George G. Meade, Maryland, and was told that his discharge would be upgraded to a general discharge under honorable conditions if he did not get into any trouble for 1 year after his discharge.

3.  The applicant provides copies of two Department of Veterans Affairs,
VA Forms 21-4138 (Statements in Support of Claim), dated 22 January 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 10 February 1970, the date of his discharge from the Army.  The application submitted in this case is dated 11 October 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military service records show that he enlisted in the Regular Army for a period of 3 years on 12 February 1967.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty 62G (Quarry Machine Operator).  His records show that he was assigned to the 610th Engineer Company (Combat Support) in the Republic of Vietnam from 10 August 1967 to 9 August 1968.  On 29 October 1968, the applicant was honorably discharged for the purpose of his immediate reenlistment.


4.  On 30 October 1968, the applicant reenlisted in the Army for a period of
4 years to attend the Air Defense Radar Repair (104-26H2O) course at Fort Monmouth, New Jersey.

5.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Aviation Center, Fort Rucker, Alabama, Special Orders Number 240, dated 30 October 1968, which show that the applicant was assigned to Fort Monmouth, New Jersey, with a report date of 14 February 1969, to attend the 104-26H2O course.

6.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 38 (Record of Assignments) of the DA Form 20 shows, in pertinent part, that on 14 February 1969, the applicant was assigned to Company X, School Brigade, U.S. Army Signal Center and School (USASC&S), Fort Monmouth, New Jersey, to attend the Service School Air Defense Radar Repair course.  This item shows that while attending the course, during the period 14 February 1969 to 11 May 1969, his conduct was rated "excellent" and his efficiency was rated "fair."  Item 38 also shows that on 12 May 1969, the applicant was reassigned to Company H, School Brigade, USASC&S, to attend the Service School Tactical Maintenance/Wave System Operator Maintenance course.  This item shows that while attending the course during the period
12 May 1969 to 8 June 1969, his conduct was rated "excellent", his efficiency was rated "good (academically)", and the applicant was absent without leave (AWOL).  Item 38 further shows, in pertinent part, that on 9 July 1969, the applicant was dropped from the rolls of the Army for desertion and his conduct and efficiency were both rated "unsatisfactory."

7.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of the DA Form 20 shows that the applicant was AWOL from 9 June 1969 to 16 July 1969; confined by civil authorities from 17 July 1969 to 22 July 1969; confined by military authorities from 23 July 1969 to 18 August 1969; and AWOL beginning 19 August 1969.

8.  The applicant's military service records contain a DD Form 458 (Charge Sheet) that shows on 28 July 1969, the first lieutenant in command of Company B, U.S. Army Special Processing Battalion, Fort George G. Meade, Maryland, preferred charges against the applicant for being AWOL during the period 9 June 1969 to 17 July 1969.


9.  The applicant's military service records contain a DD Form 458 that shows on 28 January 1970, the captain in command of the U.S. Army Special Processing Detachment , Fort George G. Meade, Maryland, preferred charges against the applicant for being AWOL during the period 19 August 1969 to 14 January 1970.

10.  On 23 January 1970, the applicant requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  On that date, applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of the request for discharge, and the rights available to the applicant.

11.  The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

12.  On 3 February 1970, the lieutenant colonel in command of the U.S. Army Special Processing Battalion, Fort George G. Meade, Maryland, recommended the applicant for separation from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  His recommendation was based on the applicant's periods of AWOL and included a recommendation that the applicant receive an Undesirable Discharge Certificate.

13.  On 10 February 1970, the colonel in command of Headquarters, Fort George G. Meade, Fort George G. Meade, Maryland, approved the applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200 and directed that the applicant be reduced to the rank of private/pay grade E-1 and furnished an Undesirable Discharge Certificate.

14.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.


15.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged on 10 February 1970 under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service.  At the time of his discharge the applicant had completed 2 years,
6 months, and 24 days of active service during the period under review.  His character of service was under conditions other than honorable.  Item 32 (Signature of Person Being Transferred or Discharged) shows that the applicant placed his signature on the document.

16.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  In support of his application, the applicant provides 2 VA Forms 21-4138, Statements in Support of Claim.  The statement by the applicant provides a summary of his military training and service and in it he states, in pertinent part, "3 to 4 months into schooling - training was cancelled.  I was told all classes were cancelled and I must return to Vietnam."  His statement also indicates that "[he] received a general discharge from Fort Meade, MD."  The statement provided by his former spouse indicates, in pertinent part, that "when [the applicant] returned from Vietnam he was noticeably a different person.  He was using drugs and abused alcohol."

18.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

19.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
20.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge, under other than honorable conditions, should be upgraded to a general discharge, under honorable conditions, because the U.S. Army cancelled its contract with him to attend the crypto-electronics course at the U.S. Army Electronics School.  He also contends, in effect, he was not given a discharge when he departed Fort George G. Meade, Maryland and was told that his discharge would be upgraded to a general discharge under honorable conditions if he did not get into any trouble for 1 year after his discharge.

2.  The evidence of record shows that the applicant was assigned to the U.S. Army Signal Center and School, Fort Monmouth, New Jersey, to attend the Air Defense Radar Repair (104-26H2O) course and that his efficiency during the period he attended the course was "fair."  The evidence of record also shows that the applicant was then reassigned to attend the Service School Tactical Maintenance/Wave System Operator Maintenance course at the USASC&S.  It is not clear from the evidence of record why the applicant was reassigned to this course prior to completing the 104-26H2O course.  However, there is no evidence of record, and applicant fails to evidence that shows the104-26H2O course was cancelled and that he was ordered to return to Vietnam.  Therefore, there is insufficient evidence to support the applicant's claim that the Army failed to honor the reenlistment contract with him to attend the Air Defense Radar Repair (104-26H2O) course at Fort Monmouth, New Jersey.

3.  The evidence of record shows that the applicant placed his signature on the DD Form 214 issued to him at the time he was discharged from the U.S. Army at Fort George G. Meade, Maryland on 10 February 1970.  By placing his signature on the document the applicant acknowledged that he was discharged under conditions other than honorable on 10 February 1970.  Therefore, the evidence of record fails to support the applicant's claim that he was not issued a discharge when he departed Fort George G. Meade, Maryland.

4.  There is no evidence of record that shows the applicant was advised that his discharge under conditions other than honorable would automatically be changed to a general discharge under honorable conditions 1 year after his discharge from the U.S. Army.  In fact, if, as the applicant claims, "[he] was not given a discharge when [he] left Fort Meade, Maryland," there would be no logical basis for an official of the U.S. Army to inform the applicant that the discharge would be upgraded (emphasis added) to a general under honorable conditions discharge after 1 year.  In fact, quite the opposite is true.  The evidence of record shows the applicant was advised, and he acknowledged that he understood, that he may be ineligible for many or all benefits administered by the Veterans Administration and that he may be deprived of his rights and benefits as a veteran under both Federal and State law because of an undesirable discharge.  Therefore, the evidence of record fails to substantiate the applicant's claim that his discharge under conditions other than honorable would automatically be changed to a general discharge under honorable conditions 1 year after his discharge from the U.S. Army. The Army has never had an automatic upgrade program.

5.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

6.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

7.  The applicant’s record of service, which shows completion of only 2 years,
6 months, and 24 days of his 4-year enlistment, along with 155 days (more than
5 months) of lost time did not meet the standards of acceptable conduct and performance of duty for Army personnel and was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 February 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
9 February 1973.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___ENA _  __AU____  ___REB_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____Eric N. Andersen_____
          CHAIRPERSON




INDEX

CASE ID
AR20060015055
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/17
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19700210
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
For the Good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
140.0000.0000
2.

3.

4.

5.

6.