RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  25 April 2008
	DOCKET NUMBER:  AR20080000774 


	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, in effect, upgrade of the character of service of his discharge.

2.  The applicant states, in effect, that he was the only son of his mother and father and they both died when he was young.  He also states, “[a]ll I had was my sister,” but there was a 3-year difference in age between them and she also died.

3.  The applicant provides a copy of page 1 of his DD Form 4 (Enlistment Contract - Armed Forces of the United States), dated 22 June 1970, and
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 21 April 1972.

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's military service records show that he was inducted into the U.S. Army and entered active duty on 22 July 1969.  Upon completion of basic combat training and on-the-job training, he was awarded military occupational specialty (MOS) 57A (Duty Soldier).  The applicant was subsequently trained as a longshoreman and awarded MOS 57H (Cargo Handler).  On 21 June 1970, the applicant was honorably discharged for the purpose of immediate reenlistment.  At the time, he was credited with completing 10 months and 25 days of net active service during this period.

3.  The applicant’s military service records contain a DD Form 4 (Enlistment Contract - Armed Forces of the United States), dated 22 June 1970.  This document shows that the applicant reenlisted in the Regular Army for a period of 3 years for his present duty assignment (i.e., 155th Transportation Company, U.S. Army Pacific (USARPAC), Cam Ranh Bay, Republic of Vietnam (RVN).  
4.  The applicant’s military service records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 20 December 1970.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about
19 December 1970, having knowledge of a lawful order issued by the Commanding Officer, 670th Transportation Company, Cam Ranh Bay, RVN, to wit: not to go to bed with Vietnamese females in the billets, did, fail to obey the same; in violation of Article 92, UCMJ.  His punishment consisted of forfeiture of $45.00 per month for 1 month.

5.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 44 (Time Lost Under Section 972, United States Code and Subsequent to Normal Date ETS [Expiration Term of Service]) shows, in pertinent part, that the applicant was absent without leave (AWOL) for 40 days from 19 July 1971 through 27 August 1971, AWOL for 7 days from 2 September 1971 through 8 September 1971, AWOL for 42 days from 9 September 1971 through 20 October 1971, AWOL for 6 days from 9 November 1971 through
14 November 1971, dropped from the rolls (DFR) for 144 days from
15 November 1971 through 6 April 1972, and confined (CONF) on 7 April 1972.

6.  The applicant's military service records contain a DD Form 458 (Charge Sheet) that shows on 10 April 1972, the major serving as Commander, United States Army Personnel Control Facility, Headquarters Command, Fort Jackson, South Carolina, preferred charges against the applicant, for violation of the UCMJ, Article 86, as follows:

     a.  Specification 1, in that the applicant did, on or about 19 July 1971, without authority, absent himself from his organization, to wit: 26th Transportation Company, located at Fort Eustis, Virginia, and did remain so absent until on or about 28 August 1971.

     b.  Specification 2, in that the applicant did, on or about 2 September 1971, without authority, absent himself from his organization, to wit:  U.S. Army Personnel Control Facility, located at Fort George G. Meade, Maryland, and did remain so absent until on or about 18 October 1971.

     c.  Specification 3, in that the applicant did, on or about 8 November 1971, without authority, absent himself from his organization, to wit:  U.S. Army Personnel Control Facility, Headquarters Command, located at Fort Jackson, South Carolina, and did remain so absent until on or about 6 April 1972.

7.  On 10 April 1972, 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 the 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.

8.  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 conditions other than honorable; 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.

9.  On 11 April 1972, the major serving as Commander, U.S. Army Personnel Control Facility, Headquarters Command, Fort Jackson, South Carolina, recommended the applicant for separation from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  The commander’s recommendation was based on careful review of the applicant's records in conjunction with his negative attitude toward honorable service, and included a recommendation that the applicant receive an Undesirable Discharge. Accompanying the commander’s recommendation was a copy of the DD Form 458 (Charge Sheet), Transmittal of Court-Martial Charges, and 3AA Form (Personal History of Accused), dated 11 April 1972.  The 3AA Form shows that the information was received from the applicant and, in pertinent part, indicates the applicant’s parents were not living, that he was married to Gloria F______ on 12 June 1968, and they had a 4-year old child.

10.  On 14 April 1972, the colonel serving as Commander, Headquarters Command, Fort Jackson, South Carolina, recommended the applicant for separation from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200 and that the applicant receive an Undesirable Discharge.

11.  On 19 April 1972, the colonel serving as Staff Judge Advocate, Headquarters, U.S. Army Training Center, Infantry and Fort Jackson, Fort Jackson, South Carolina, reviewed the proposed discharge action and found the applicant’s request for discharge for the good of the Service legally correct.

12.  On 19 April 1972, the major general serving as Commander, U.S. Army Training Center, Infantry and Fort Jackson, Fort Jackson, South Carolina, approved the applicant’s request for discharge under the provisions of chapter
10 of Army Regulation 635-200, directed that the applicant be reduced to the rank of private/pay grade E-1, and furnished an Undesirable Discharge Certificate.

13.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 21 April 1972, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service.  At the time of his discharge the applicant had completed 2 years, 0 months, and 26 days net active service.  This document also shows that the applicant was issued Separation Program Number (SPN) "246" and his character of service was "under conditions other than honorable" for the period of service under review.  Item 26a (Non-Pay Periods Time Lost - Preceding Two Years) of the  DD Form 214 shows the applicant had time lost from 19 July 1971 through
27 August 1971, from 2 September 1971 through 20 October 1971, and from
9 November 1971 through 11 April 1972; a total of 244 days.

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

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

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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.


17.  Army Regulation 635-5-1 (Separation Program Numbers) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “246” as the appropriate SPN to assign enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service.

18.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 discharge should be upgraded to an honorable discharge because he was the only of son of his mother and father, they both died when he was young, and all he had was his sister.

2.  The evidence of record confirms that the applicant’s parents were not living at the time he requested a discharge for the good of the Service.  However, the evidence of record also shows that the applicant was married and had a 4-year old child at the time.  Thus, the applicant’s claim that “all I had was my sister” is not supported by the evidence of record.

3.  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.  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.

4.  The evidence of record shows that during the period of service under review, the applicant was absent without leave and dropped from the rolls in a deserter status.  The evidence of record also shows that, based on the seriousness of the offense for which he admitted guilt, the punishment for which included a bad conduct or dishonorable discharge, the applicant voluntarily submitted a request for discharge for the good of the Service.  In this regard, the applicant’s record documents 244 days time lost (i.e., more than 8 months) during the period of service under review, which did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

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 that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JS____      WDP___    LGB____  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.




      _______J S____
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080000774



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