IN THE CASE OF:	  

	BOARD DATE:	  12 June 2008

	DOCKET NUMBER:  AR20080005213 


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 discharge be upgraded to honorable.  He also requests, in effect, that all his military schools, awards, and certificates be added to his DD Form 214 (Report of Separation from Active Duty) for the period ending 9 June 1976.  He further requests, in effect, that his airborne status be reinstated and that his reserve status be activated.

2.  The applicant states that he wants his airborne status reinstated, his Special Forces training documented, his accomplished schools accredited, and his reserve status activated so he may serve in any capacity possible.  He served to the best of his ability, but a few unfair noncommissioned officers drove him away from the Army by making it very hard to please anybody.  He has 4 years of college and 2 years of trade school in the medical field.  He is a master scuba diver, a general pilot, and a general contractor.  He knows he is already 56 years old, but he is in better shape than most of his peers or younger people.

3.  The applicant provides a copy of an envelope, postmarked 17 November 2007; and a letter, dated 31 December 2007, from the National Personnel Records Center.

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 6 September 1951.  He was inducted into the Army on 12 January 1971.  He was honorably discharged on 19 January 1971 for the purpose of immediate reenlistment.  He enlisted in the Regular Army on 20 January 1971 for training in infantry and Special Forces.  He completed basic combat training.  He apparently completed advanced individual training and was awarded military occupational specialty 11B (Infantryman).  

3.  On 19 January 1972, while at Fort Bragg, NC, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 14 through 16 January 1972 and for being disorderly in station by fighting.

4.  The applicant apparently separated on temporary records.  His DA Form 2-1 (Personnel Qualification Record) was prepared in May 1976 and does not list any military schooling.  His records contain no orders/certificates showing he completed any schools or that he received any awards or certificates.

5.  On 7 May 1976, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 8 February 1974 to on or about 6 May 1976.  On 11 May 1976, an additional charge was preferred against him charging with being AWOL from on or about 28 September 1973 to on or about  7 February 1974.

6.  On 10 May 1976, the applicant completed a separation physical examination and was found qualified for separation.  

7.  On 12 May 1976, 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.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included 

offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of an undesirable discharge and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf.

8.  The applicant stated he entered the Army because he was drafted.  He respected the Army, but he wanted out because it had been too long and it would be hard to adapt to military life and change from his civilian life, which he had already started to establish.  He was now married and had started a family.  

9.  On 24 May 1976, the appropriate authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate.

10.  On 9 June 1976, 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 a total of 3 years, 1 month, and   24 days of creditable active service with 956 days of lost time.

11.  The DD Form 214 used at the time of the applicant’s discharge, the version dated 1 November 1972, did not contain a section to record military schooling.

12.  On 10 May 1985, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.  In his ADRB application, he stated that he volunteered for Special Forces and automatically went to airborne (training).  He passed Phase I, but according to them he could not pass Phase II. After being dismissed from Special Forces, he was sent to Fort Riley, KS.  

13.  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 trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.


14.  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.  

15.  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.  Considering the length of the applicant’s AWOL, which was not the first time he went AWOL, it appears that the characterization of his service as undesirable and under other than honorable conditions was and still is appropriate.

3.  It is acknowledged that the applicant enlisted for Special Forces training in January 1971.  However, it appears he separated on temporary records, nothing unusual considering he was AWOL for almost 2 years.  There is no evidence of record to show he completed airborne training (which would have made him eligible for award of the Parachutist Badge), and he admitted in his ADRB application that he did not complete Special Forces training.  No other training or schools are recorded in his files.  In addition, there is no section on the version of the DD Form 214 in effect at the time he was discharged for recording military or civilian schooling or training.

4.  The applicant does not have a reserve status that could be “reactivated.”  He was discharged in June 1976, severing all connections to the Army.

5.  The applicant’s desire to serve his country at this time is laudable; however, that is an insufficient reason to grant the relief requested.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ____xx__  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.



	________xxxxxx_________
      	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)                                         AR20080005213



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ABCMR Record of Proceedings (cont)                                         AR20080005213



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