RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070008327 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. James R. Hastie

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 be upgraded.   

2.  The applicant states that the doctors put his wife on bed rest and recommended that he be sent home to care for her and their child.  When his commander refused to allow him to go home, he went AWOL (absent without leave) to care for them.  He further states that he had planned a 20-year career and feels that his reduction to private, pay grade E-1, and an undesirable discharge was unjust in light of his two previous enlistments that were honorable. 

3.  The applicant provides copies of his three Armed Forces of the United States Reports of Transfer or Discharge (DD Form 214), and letters of support from three former employers. 

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.  On 14 January 1963, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 941.10 (Cook).  He had 48 days of lost time from 
8 through 23 July, and from 2 August through 2 September 1963.  He was released from active duty on 2 March 1965, with an honorable characterization of service.  He had attained the rank of specialist four, pay grade E-4, and had completed 2 years of creditable active service.  




3.  On 5 April 1967, the applicant enlisted in the Regular Army for 3 years.  He retained his MOS of 94B2O (Cook) and was reassigned to the Federal Republic of Germany.  He was honorably discharged on 5 May 1968 for the purpose of immediate reenlistment.  He was a specialist four and had completed a total of 
3 years, 1 month, and1 day of creditable active service.

4.  On 6 May 1968, the applicant reenlisted in the Regular Army beginning in the rank of specialist four, pay grade E-4.  

5.  On 14 August 1968, the applicant was promoted to specialist five, pay grade E-5.

6.  On 13 February 1969, the applicant was placed on orders for assignment to the Americal Division in the Republic of Vietnam.  On 11 March 1969, he was assigned for duty as a cook with the 3rd Battalion, 82nd Artillery Regiment.  

7.  On 24 October 1969, the applicant became a patient in the 7th Field Hospital and was soon afterwards medically evacuated to Fort Riley, Kansas for further medical treatment.

8.  On 25 March 1970, the applicant was assigned for duty as a cook to Fort Sam Houston, Texas.  

9.  On 5 April 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for AWOL from 
29 March to 4 April 1972.  The punishment included reduction to specialist four, pay grade E-4 (suspended).  

10.  On 7 April 1972, the applicant again went AWOL.  On 11 April 1972, the suspended punishment was vacated.  He was returned to military control after 159 days, on or about 13 September 1972.  

11.  On 21 September 1972, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 7 April to 13 September 1972.

12.  On 22 September 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

13.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

14.  On 11 October 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 13 October 1972, the applicant was discharged accordingly.  He had completed a total of 9 years, 3 months and 19 days of creditable active military service and accrued 166 days of time lost due to AWOL.

15.  On 26 October 1981, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

17.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

18.  The three letters of support provided by the applicant show that from 1983 to 2003, the applicant was a good employee who worked hard and was dependable.






DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  Notwithstanding the applicant's assertion that it would be unjust not to upgrade his discharge, there is no convincing evidence showing that he was denied leave to care for his family, had any other mitigating circumstances, or that his AWOL was a reasonable solution to them.  

4.  The applicant’s good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5.  Based on this record of indiscipline, the applicant's service during his last enlistment clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time renders his service unsatisfactory. Therefore, he is not entitled to an honorable discharge for his last period of service.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRH___  __ECP__  __LDS __  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.




___ Linda D. Simmons __
          CHAIRPERSON


INDEX

CASE ID
AR20070008327
SUFFIX

RECON
  
DATE BOARDED
20071204 
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.