RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070018153 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 

2.  The applicant states that his parents divorced when he was 7 years old.  His mother died when he was 15 and he went to live with his father in Florida.  Things were pretty tough financially, he thinks that his step-mother resented him and he did not handle that too well.  At 17 he joined the Army with his father's permission.  He did well, got his general educational development (GED) certificate and, "for the first time since my mother died, felt like I was part of something, a family."

3.  The applicant relates that he decided to "take a short discharge and reenlist for four more years…."  He changed his military occupational specialty (MOS) and became a Hawk Missile Launcher Crewman.  He was honor graduate of his class and got to choose his duty station.  He chose Homestead, Florida to be close to his father.  He did well at first but, "Looking back, I feel that duty station was my first mistake, being that close to home and my father." 
   
4.  The applicant continues by stating that his father was diagnosed with cancer and later died, in 1976.  He thought he could help his father and the family by being absent without leave (AWOL).  He thought that putting family first was the right thing to do, but he regrets it now.  He states, in effect, that he was still very young and immature.  When he had a chance to get out with a bad discharge he thought that helping his father was the thing to do.  He has regretted that decision ever since.   

5.  The applicant relates that 35 years is a long time to remember things accurately, but he has tried to do so and to not repeat the bad decisions of his youth.  He has had some satisfying results.  He has three married children that anyone would be proud of and believes that he has had a good life and a satisfying career.  He points out that he did serve three-and-a-half good years in the Army and has always been proud of that.   

6.  The applicant provides a copy of his Army personnel and medical records, and a letter from his employer congratulating him on 25 years of service.  He also provides letters from a union official, and two co-workers and friends. 

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 enlisted with parental consent on 11 August 1967 at the age of 17 years, 5 months, and 19 days.  He completed training as a supply clerk.  On 25 April 1968, the applicant was discharged for the purpose of immediate reenlistment.  He reenlisted on 26 April 1968 for four years.  He had 8 months and 15 days of honorable service.  He underwent advanced individual training (AIT) as a Hawk Missile Launcher Crewman and was the Honor Graduate of his class.  After completing training the applicant was stationed at Homestead Air Force Base, Florida. 

3.   Notwithstanding conviction by a December 1968 special court-martial for being AWOL from 21 October to 14 December 1968, the applicant was advanced to pay grade E-3 on 25 February 1969 and to pay grade E-4 on 18 July 1969. 

4.   The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) in November 1970 and January 1971.  

5.  When he was AWOL from 8 to 22 February 1971 he was barred from reenlistment.  When he again went AWOL, from 3 to 4 March 1971 and 
15 to 22 March 1971, charges were preferred against him under the UCMJ.   

6.  On 31 March 1971 the applicant consulted with counsel and voluntarily requested discharge for the good of the service, in lieu of trial by court-martial under conditions that could lead to a punitive discharge.  In his request for discharge, he acknowledged he understood that if his 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), that he could be deprived of his rights and benefits as a veteran under Federal and State law, and that he could expect to encounter substantial prejudice in civilian life.

7.  The immediate commander recommended disapproval of the applicant's request for discharge.  He was of the opinion that the applicant's behavior was calculated to achieve an immediate discharge.  He thought it appropriate to proceed with the court-martial and to undertake elimination board proceedings afterward.  The intermediate commander recommended approval of the applicant's request and issuance of an Undesirable Discharge Certificate.

8.  On 8 April 1971 a special court-martial convicted the applicant of those three AWOL's.  The sentence consisted of confinement for 6 months and reduction to pay grade E-1.  The convening authority's action on the sentence was held in abeyance pending a decision on the applicant's chapter 10 request.

9.  The discharge authority approved the applicant's voluntary request for discharge in lieu of trial by court-martial and directed that he be issued an undesirable discharge.  The applicant was separated on 10 June 1971 under the provisions of Army Regulation 635-200, chapter 10.  He had completed 2 years,
9 months, and 15 days creditable service and had 134 days lost time

10.  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 trial by court-martial.  At the time an undesirable discharge was normally considered appropriate. 

11.  Under the UCMJ, then in effect, the Table of Maximum Punishments shows that 6 months confinement at hard labor was authorized for an AWOL of more than 3 days but less than 30 days and that a bad conduct discharge was authorized for conviction of any two such offenses.  

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

2.  The applicant had demonstrated the capability for honorable service.  His graduation at the top of his AIT class and his promotions following his first court-martial conviction are both impressive, but the positive aspects of his service do not outweigh the misconduct of record. 
3.  There is no substantiating evidence to show any relationship between his alleged family problems and his final discharge.  There is also no indication as to how the medical records the applicant provided are relevant to his discharge.

4.  The evidence of the applicant's satisfactory adjustment to and success in civilian life is noted, but in light of his early success in the service, this does not demonstrate that the discharge should be changed.  

5.  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 or argument that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ TSK __  ___JLP__  __DWT __  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.





      _______TSK________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070018153



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508