IN THE CASE OF:	  

	BOARD DATE:	  24 July 2008

	DOCKET NUMBER:  AR20080005605 


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 in effect, that his undesirable discharge be upgraded to a general or an honorable discharge.

2.  The applicant states, in effect, his discharge should be upgraded because of the incorrect dates and that his records were lost.  He states that he served on active duty between 9 May 1967 and November 1967, and then reenlisted for  
3 years.  He was assigned to the 94th Engineer Battalion in Germany from January 1968 to 29 January 1969.  He was given 30 days of leave before he was being sent to Vietnam and while he was on leave he got married.  He requested an additional 30 days of leave so that he can get his wife settled in a home.  He reported to Fort Lewis, Washington in March 1969.  While at Fort Lewis, Washington he called his wife and found out she was deeply depressed.  He tried to get help but he was told nothing could be done.

3.  He states, in effect, that he had no choice but to go home and get her the help she needed.  On 12 May 1969, he was preparing to return to Fort Lewis, Washington, when he got pinned between two cars and his leg got crushed as he was trying to save a man's life.  He was taken to a hospital in Upland, California where he notified the staff he was in the military.  He was stabilized and then transferred to March Air Force Base (AFB).  He states that after being slapped and shoved around and taken to the stockade he was transferred to Fort Ord, California and stayed there for 8 months without pay.  Every time he asked about his pay or a discharge he was told that his records were lost and nothing could be done until they were found.

4.  He further states, that his wife was having a baby and he had no way to support them, so he told the commander of the hospital that the Army was in breach of contract and he left and went home to find a job at McDonalds.  He states that every time he would turn himself in he was told that his records were lost.  He explained his problem to the Federal Bureau of Investigation (FBI) and then he left a phone number and address with them.  He was told they would call him if they heard anything.  

5.  He states that his military attorney told him he would go to Fort Leavenworth prison for 1 year and that he would receive a dishonorable discharge if he didn't do what he told him to do.  His attorney added that, he could get his undesirable discharge upgraded if he stayed out of trouble.  He states he was a good Soldier and all he wants is the right thing to be done by upgrading his discharge.  His father is a World War II Purple Heart recipient and he wanted this to be accomplished before he died.

6.  The applicant provides a copy of a personal statement and nine character reference statements that were previously addressed to the Department of Veterans Affairs.

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 9 May 1967.  He completed the necessary training and was awarded the military occupational specialty (MOS) 62E (Construction Machine Operator).

3.  He served continuously until he was honorably discharged from active duty on 15 January 1968.  He immediately reenlisted in the Regular Army on 16 January 1968 for 3 years.  His highest rank and pay grade held was specialist four, E-4.

4.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) during the periods from
30 March 1969 to 7 April 1969 and from 8 April 1969 to 30 April 1973, for a total of 1,493 days of time lost.  The applicant was in confinement from 3 May 1973 to 
17 May 1973.

5.  On 7 May 1973, 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.  The applicant was not subjected to coercion with respect to his request for discharge.

6.  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. 

7.  On 8 May 1973, the applicant submitted a statement in his own behalf.  In his statement, he stated, in effect, that while he was AWOL he became involved in writing bad checks for which he was arrested and tried by civilian authorities.  He spent two weekends in jail and was given 2 years probation and had to make full restitution.  He felt he made it okay without the "G.I." benefits and he wouldn't need it in the future.  He hated the Army and he didn't want anything to do with the Army and if he was to return to duty he would only take off again and again.  He fully understood what an undesirable discharge meant and he would gladly accept one to get out of the Army.

8.  On 11 May 1973, the applicant's commander recommended that the applicant be discharged from the Army with an undesirable discharge under the provisions of Army Regulation 635-200 for the good of the service.  The commander stated that the applicant's pattern of behavior indicated that retention was neither practical nor desirable.

9.  On 31 May 1973, the separation authority approved the commander's recommendation and directed that the applicant be issued an Undesirable Discharge Certificate.  Accordingly, he was reduced in rank from specialist four,  
E-4 to private, E-1 and on 6 June 1973 the applicant was discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 1 year, 10 months, and 20 days of Total Active Service.  He had accrued 1,493 days of time lost.

10.  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.

11.  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.  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.

12.  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.

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 contends that his undesirable discharge should be upgraded to a general or an honorable discharge.

2.  Evidence shows the applicant had 1,493 days of time lost.  As such, an undesirable discharge was equitable and proper.

3.  There is no evidence or indication that the applicant's wife was experiencing depression and needed his immediate attention when he went AWOL, or that he returned home to help his wife.  Although, the applicant had injured his leg, the evidence shows he made a conscious decision not to return to duty by virtue of the inordinate amount of time lost.

4.  There is no evidence or indication that a military attorney told the applicant he would go to prison at Fort Leavenworth for 1 year and that he would receive a dishonorable discharge if he didn't do what he told him to do or that he could get his undesirable discharge upgraded if he stayed out of trouble.  The evidence shows that the applicant was properly advised by counsel.  The applicant also signed a statement that stated he was not subjected to coercion with respect to his request for discharge.

5.  The character statements that the applicant submitted are noted.  However, the character statements are not sufficient to warrant a change to a properly issued discharge.

6.  As such, he is not entitled to correction of his records to upgrade his undesirable discharge to a general or an honorable discharge.

7.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ____X___  ___X___  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.



	_________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)                                         AR20080005605



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ABCMR Record of Proceedings (cont)                                         AR20080005605



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