IN THE CASE OF:	  

	BOARD DATE:	  8 May 2008

	DOCKET NUMBER:  AR20080004099 


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 be upgraded to general under honorable conditions.

2.  The applicant states that when he enlisted he was guaranteed training in Rotary Aircraft Maintenance.  He was in advanced individual training (AIT) for three weeks at Fort Rucker, AL and had been doing well, when orders came down for many of them to retake their physicals.  It was comprised of the same things they were checked for before enlisting, yet so many of them were failed that they had to open a special barracks for what they called “Medical Holdovers.”  He was issued new orders to become a heavy-duty tire repairman at Aberdeen, MD.  He showed the career counselor his guarantee card for the other course, but the career counselor told him “I’m sorry you have already been issued orders, there is nothing I can do for you.”

3.  The applicant states that he had just turned 18 and had his heart set on training that would help him prosper in life with something he would enjoy doing.  He was upset at the idea of becoming a heavy-duty tire repairman, so he went absent without leave (AWOL).  He was arrested for being AWOL.  After serving  6 months in the stockade he was given a chapter 10 discharge.

4.  The applicant states that he did write a letter to Washington, D.C. and requested they intervene or, if they could not get him enrolled back in the Rotary Aircraft Maintenance course, that they take a year off his enlistment.  They never responded.  
5.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

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 born on 28 March 1951.  On 19 February 1969, he enlisted in the Regular Army for training in Army Career Group 67 (Aircraft Maintenance). He completed basic combat training and was assigned to Fort Rucker, AL for AIT on 22 May 1969.

3.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 4 through 7 July 1969; in military confinement on 8 July 1969; AWOL from 9 through 15 July 1969; and dropped from the rolls from 16 July through 3 August 1969.

4.  Item 38 (Record of Assignments) of the applicant’s DA Form 20 shows he was en route to Aberdeen Proving Grounds, MD on 20 June 1969, but the entry was deleted.  It shows he was en route to Fort Leonard Wood, MO on 11 July 1969, but the entry was deleted.

5.  On 11 June 1970, the applicant was convicted, contrary to his pleas, by          a special court-martial of three specifications of being AWOL, from on or       about 23 to on or about 24 August 1969; from on or about 2 to on or about           6 September 1969, and from on or about 9 September 1969 to on or about        23 May 1970.  He was sentenced to confinement at hard labor for 4 months (that portion in excess of 2 months suspended for 6 months), to forfeit $70 pay per month for 4 months, and to be reduced to pay grade E-1.

6.  On 28 July 1970, the applicant completed a separation physical and was found qualified for separation.
7.  On 8 August 1970, court-martial charges were preferred against the applicant charging him with stealing one jacket, of a value of about $13.50, at the main Post Exchange.  He was a prisoner at the U. S. Army Correctional Holding Detachment, Fort Ord, CA at the time.

8.  On 2 September 1970, 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 indicated he understood that as a result of issuance of an Undesirable Discharge he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf wherein he stated that he had 10 months of bad time and only 8 months of good time.  He knew that he could not return to duty and successfully complete his tour.  For those reasons, he requested a discharge for the good of the service.

9.  On 26 September 1970, the appropriate authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate.

10.  On 5 October 1970, 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 of creditable active service and had 382 days of lost time.

11.  In 1981, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  Among the reasons he gave as to why his discharge should be upgraded was that he was enlisted illegally because at the time of his enlistment he was under the supervision of the California Youth Parole and the San Bernardino, CA Parole Office (from June 1967 to March 1972).  He also raised the issue of his enlistment option not being satisfied.  On   13 September 1982, he withdrew his application to the ADRB due to his incarceration in Jefferson City, MO.

12.  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.
13.  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.  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.

2.  The applicant contended, and his enlistment contract confirms, that he enlisted for guaranteed training in Rotary Aircraft Maintenance.  However, there is no evidence of record and he provides no evidence to substantiate his contentions that about three weeks after starting AIT he and many others had to retake their physicals, and many of them failed, causing him to be sent for training in another career group.  There is some evidence of record to indicate he may have been on orders for assignment to Aberdeen Proving Grounds, MD at one time, but there is no evidence to show why.  

3.  The applicant contended that after serving 6 months in the stockade he was given a chapter 10 discharge.  However, the evidence of record shows that the chapter 10 was based upon his stealing a jacket from the main Post Exchange, at a time when he was serving his sentence to confinement.  

4.  The applicant contended that he wrote a letter to Washington, D.C. and requested they intervene or, if they could not get him enrolled back in the Rotary Aircraft Maintenance course, that they take a year off his enlistment.  They never responded.  A copy of this correspondence is not filed in his records; therefore, this issue cannot be addressed.

5.  It is acknowledged that the applicant was just shy of turning age 18 when he enlisted.  However, the applicant’s record of misconduct in the Army does not appear to have been an isolated incident in his life.  Given the lack of evidence to substantiate his contentions concerning his enlistment option, there is insufficient evidence that would warrant granting the relief requested.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX___  _XXX___  _XXX___  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.




      ________XXX____________
      	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)                                         AR20080004099



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ABCMR Record of Proceedings (cont)                                         AR20080004099



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