IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080004570 


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 an upgrade of his discharge. 

2.  The applicant states that during his service in Korea, he was notified that his 5-year old daughter was being neglected.  He further adds that although he was allowed to take leave, the duration of his leave was not sufficient to handle the situation and that his unit commander wanted him to return to Korea before he could resolve the problem back home.  He notified his unit that he was not ready to return to Korea and was sent to Fort Knox, Kentucky, instead.  While at Fort Knox, Kentucky, he continued to serve to the best of his ability and his chain of command was supportive and sympathetic to his situation.  He concludes that in view of his situation, his undesirable discharge was unjust.

3.  The applicant provided a copy of his Honorable Discharge Certificate, dated 11 December 1969, and a copy of his Undesirable Discharge Certificate, dated 13 June 1972, in support of his application.

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 records show that he enlisted in the Regular Army for a period of 3 years on 17 March 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 67M (OH-23 Helicopter Repairman).  He was honorably discharged on 11 December 1969 for the purpose of immediate reenlistment, and reenlisted in the Regular Army for a period of 3 years on 12 December 1969.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records show that he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts of valor during his military service.

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code) of the applicant DA Form 20 (Enlisted Qualification Record) shows the applicant was reported absent without leave (AWOL) during the periods 23 January 1970 to 27 February 1970; 2 May 1971 to 2 June 1971; 6 December 1971 to 20 January 1972; 13 March 1972 to 19 March 1972; and 16 April 1972 to 7 May 1972. 

5.  On 27 March 1970, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL from on or about 23 January 1970 through on or about 28 February 1970.  The Court sentenced him to forfeiture of $15.00 pay per month for 3 months and reduction to private first class (PFC)/E-3.  The sentence was adjudged on 27 March 1970 and approved on 15 April 1970.

6.  On 24 June 1971, the applicant pled guilty at a Summary Court-Martial to one specification of being AWOL from on or about 2 May 1971 through on or about 3 June 1971.  The Court sentenced him to confinement at hard labor for 30 days and forfeiture of $69.00 pay per month for one month.  The sentence was adjudged on 24 June 1971 and approved on 24 June 1971.

7.  On 14 February 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 9 December 1971 through on or about 21 January 1972.  His punishment consisted of reduction to PFC/E-3, forfeiture of $100.00 pay per month for one month, and 30 days of extra duty.

8.  On an unknown date between 7 May 1972 and 30 May 1972, Court-Martial charges were preferred against the applicant for being AWOL during the periods on or about 13 March 1972 through on or about 19 March 1972 and on or about 16 April 1972 through on or about 7 May 1972.

9.  On 30 May 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.  Following consultation with legal counsel, the applicant requested 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 (Personnel Separations).

10.  On 31 May 1972, the applicant’s immediate commander recommended approval of the applicant’s request for discharge.  He further remarked that the applicant’s conduct had rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and that the administrative burdens involved in courts-martial and possible confinement were not considered warranted in view of the nature of the offense.  The immediate commander concluded that punishment can be expected to have minimal rehabilitative effect and the total lack of any ultimate benefit to the Army or society accomplished by punishment would seem to justify the granting of this request.  He recommended an Undesirable Discharge Certificate.  

11.  On 31 May 1972, the intermediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.

12.  On 5 June 1972, the separation authority approved the applicant's request for discharge and directed he receive an Undesirable Discharge Certificate.  On 13 June 1972, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was discharged under chapter 10 of Army Regulation 635-200 with a character of service of under conditions other than honorable.  This form further shows the applicant completed a total of 2 years, 10 months, and 1 day of creditable active military service with 147 days of lost time due to AWOL.

13.  On 12 April 1976, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.



14.  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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7, 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 3-7, 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 contends that his discharge should be upgraded.

2.  There is no evidence in the applicant’s records and the applicant did not provide substantiating evidence that his repeated pattern of AWOL was the result of family problems involving his daughter.  

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial; all requirements of law and regulation were met; and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.



4.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

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)                                         AR20080004570



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080004570



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1