RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 January 2008
	DOCKET NUMBER:  AR20070011084 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. Frank C. Jones

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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 that his discharge be upgraded to honorable or under honorable conditions.

2.  The applicant states he needs his discharge upgraded for Department of Veterans Affairs medical treatment.  He did not believe in killing or Vietnam.

3.  The applicant provides no additional evidence.

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.  The applicant was inducted into the Army on 23 February 1971.  

3.  On 10 May 1971, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from on or about 6 March to on or about     17 March 1971; from on or about 27 March to on or about 5 April 1971; and from on or about 9 April to on or about 22 April 1971.  His approved sentence was confinement at hard labor for 4 months and a forfeiture of $75.00 pay per month for 2 months.   

4.  The applicant completed basic combat training and advanced individual training (AIT) and was awarded military occupational specialty 64C (Motor Transport Operator).

5.  Forfeiture-of-pay orders indicate the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions.

6.  On 21 March 1972, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 14 February 1972 to on or about 19 March 1972.

7.  On 22 March 1972, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Department of Veterans Affairs benefits.  He submitted a statement in his own behalf.

8.  The applicant stated that from the very beginning he had no desire to be any part of the military and he certainly did not want the military to have anything to do with him.  It was his misfortune that he was drafted.  He could tell right off that the Army and he were not going to get along at all.  They cut his hair and started screaming orders at the top of their vocal ability as if everybody was hard of hearing.  That totally went against what he believed in and also got on his nerves.  Because of that, he went AWOL.  They caught him and returned him to his unit.  He was continually nervous and did not want to stay around a military post any longer so he went AWOL again.  While AWOL, he called his commander and told him he wanted out of the military because his views      were entirely different from theirs.  His commander said he would give him a    212 discharge, so he returned from AWOL.

9.  The applicant stated that he waited about a week, but he could not stand it any longer so he went AWOL again.  When they caught him, they put him in the stockade.  After his trial and completion of AIT, he decided to go to Fort Huachuca, AZ to see what it was like.  He got three Article 15s and went AWOL again.  They started 212 action there but he could not stay around so he went AWOL once more.  They caught him in Washington and put him in the stockade. Before being caught he was to be married.  His fiancé was pregnant, and he wanted out of the Army so he could be with his family.  He believed that his discharge would benefit himself and the Army immensely considering his views and the Army’s were totally different.  

10.  On 27 March 1972, the appropriate authority approved the applicant’s request and directed he receive an undesirable discharge.

11.  On 29 March 1972, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 7 months and 28 days of creditable active service and had 159 days of lost time.
12.  Army Regulation 635-200 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 trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

13.  Army Regulation 635-200, 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.  

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  It is understood that the applicant stated that from the very beginning he had no desire to be any part of the military and he certainly did not want the military to have anything to do with him.  However, thousands of other draftees felt the same way and yet completed their 2 years of service, earning their veterans benefits.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  He was advised at the time of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and veterans benefits.  The fact he now feels he may have made the wrong decision is insufficient to show that his discharge was improper or unjust.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__fcj___  __lmd___  __mjf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




__Frank C. Jones_____
          CHAIRPERSON




INDEX

CASE ID
AR20070011084
SUFFIX

RECON

DATE BOARDED
20080108
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19720329
DISCHARGE AUTHORITY
AR 635-200, ch 10  
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.