IN THE CASE OF:	  

	BOARD DATE:	  11 JUNE 2008

	DOCKET NUMBER:  AR20080003823 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge, characterized as under other than honorable conditions, be upgraded to a general discharge.  Also, he requests that Item 17c (Date of Entry) of his separation document (DD Form  
214) be corrected.

2.  The applicant states he made the decision to go absent without leave (AWOL) under great duress due to an abusive motor sergeant.  He states the choice between spending more than one year in confinement versus taking an other than honorable conditions discharge really left him with no options.  He continues that he was just 17 years old and was not mature enough to handle the abuse that the older Noncommissioned Officer (NCO) had decided to deal out to him once he made the choice not to like him.  The NCO wanted to get rid of him from the first time he saw him.

3.  He further states that he spent 18 months of his enlistment honorably and only chose to go AWOL when he felt there were no other options.  The reasons he enlisted into the Army were patriotism and self-improvement.  He volunteered to go to Vietnam on three separate occasions and also wanted to maximize his service to his country.  Every day he regrets the decision he made.

4.  The applicant provides a copy of his DD Form 214, a personal statement dated 9 February 2008, and a letter from the Office of the 2nd Ward Councilman dated 9 February 2008.

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 personnel record shows he enlisted in the Regular Army on 10 July 1970.  He completed the necessary training and was awarded the military occupational specialty 63C (Track Vehicle Mechanic).

3.  A Certificate of Unsuitability for Enlistment/Reenlistment dated 23 August 1971 shows the applicant's commander requested a bar to reenlistment because the applicant had demonstrated he was unfit for further military service due to his frequent problems, requiring frequent counseling and supervision.  The commander states that his military appearance, maintenance of clothing and equipment, and his military bearing were below the expected standards of a Soldier of the United States Army.  His conduct and efficiency ratings were unsatisfactory and if he were permitted to reenlist, he would bring discredit upon his unit and the United States Army.

4.  On 5 October 1971, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL during the period from 20 to 27 September 1971 and for dereliction of duty performance, in which he failed to pass a roadside spot check.

5.  On 19 January 1972, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being AWOL during the period 28 December 1971 to 
6 January 1972.

6.  On 22 June 1972, charges were preferred against the applicant for being AWOL during the period 27 April 1972 to 13 June 1972.

7.  On 23 June 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 undesirable 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, under the provision of Army Regulation 635-200 (Personnel Separation), chapter 10, in lieu of trial by court-martial.

8.  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 of 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.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Undesirable Discharge.  The applicant did not submit a statement on his own behalf.

9.  On 30 June 1972, the applicant's commander forwarded his recommendation for separation to the approving authority.  On 11 July 1972, the approving authority approved the applicant's request and directed the applicant be furnished an Undesirable Discharge Certificate.

10.  On 17 July 1972, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 1 year, 9 months, and 27 days of Net Service This Period and that he accrued a total of 71 days of time lost.

11.  The personal reference letter written by the Office of the 2nd Ward Councilman states that the applicant has been a good citizen, business person, family man, and an asset to his community.  The applicant has inspired many people with his musical abilities and he is proud to have the applicant as a citizen of the city of Salem, Ohio.

12.  Item 17c of his DD Form 214 contains no entry.  However, his personnel record shows he enlisted in the Regular Army on 10 July 1970 for 3 years.

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

14.  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.  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.

15.  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 (emphasis added), 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.

16.  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.

17. Army Regulation 635-5 (Separation Documents), in effect at the time established the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directed that you enter the date entered on active duty or date enlistment or reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested that his undesirable discharge be upgraded to a general discharge and that Item 17c of his DD Form 214 be corrected.

2.  Evidence of record shows the applicant was AWOL during the periods  
20 to 27 September 1971; 26 November to 20 February 1973; 28 December 1971 to 6 January 1972; and 27 April to 13 June 1972.  As such, an undesirable discharge was equitable and proper.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of repeated misconduct renders his service unsatisfactory. Therefore, he is not entitled to correction of his records to show a general discharge.

4.  The applicant's contentions and the documents that he provided were considered.  However, the evidence shows the applicant was at least 19 years old when he went AWOL and his post service conduct is not sufficient to warrant a change to a properly issued discharge.

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

6.  Evidence of record shows that the applicant enlisted in the Regular Army on 10 July 1970.  Therefore, he is entitled to correction of his record to show in Item 17c of his DD Form 214, 10 July 1970.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing in Item 17c of the applicant's DD Form 214 that his date of entry on active duty was 10 July 1970.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the upgrade of the applicant's undesirable discharge.




       _   ___X____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003823



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ABCMR Record of Proceedings (cont)                                         AR20080003823



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