IN THE CASE OF:	  

	BOARD DATE:	  05 June 2008

	DOCKET NUMBER:  AR20080005737 


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 a general discharge. 

2.  The applicant states, in effect, that he received an honorable discharge for his first period of service.  He goes on to state that he again enlisted for a period of 6 years and was transferred to Vietnam.  He returned from Vietnam and was stationed at Fort Sill, Oklahoma until he was reassigned to Alaska.  While in Alaska with his family, his wife developed medical problems and had to return to Fort Sill for surgery because there were no capabilities in Anchorage, Alaska at the time to handle the surgery.  He continues by stating that while at Fort Sill, his father-in-law died and his wife could not do for herself and the kids.  He requested additional leave and was denied because he had used all of his leave up, so he went absent without leave to take care of his family. 

3.  The applicant provides a copy of a DA Form 2627, a copy of his 22-month extension, a copy of his Personnel Qualification Record – Part II (DA Form 2-1), a copy of his record of induction and a copy of his reports of discharge (DD Form 214).  

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, though somewhat incomplete, show that he was inducted in Raleigh, North Carolina on 8 June 1967.  He completed his training and was transferred to Germany, where he served until he was honorably released from active duty in the pay grade of E-4 on 3 May 1969, as an early overseas returnee.  He had served 1 year, 10 months, and 26 days of total active service.

3.  On 30 July 1969, the applicant enlisted in the Regular Army in Raleigh, North Carolina for a period of 6 years.  He completed his training and was transferred to Vietnam on 4 May 1970.  He departed Vietnam on 9 April 1971 and was transferred to Fort Sill, Oklahoma.  He was promoted to the pay grade of E-5 on 6 August 1971 and on 9 March 1972, he failed the basic leadership course (BLC).  

4.  On 29 March 1974, the applicant extended his enlistment for a period of 22 months in order to complete a with dependents overseas tour.  He was transferred to Fort Richardson, Alaska on 4 May 1974 for assignment to a field artillery unit.  His family resided in government quarters at Fort Richardson.  

5.  On 2 January 1975, nonjudicial punishment was imposed against him for dereliction of his duties.  His punishment consisted of a reduction to the pay grade of E-4.  

6.  On 7 January 1975, the applicant’s commander submitted a recommendation to bar the applicant from reenlistment.  The bar was approved on 24 January 1975.  The bar to reenlistment was reviewed on 4 June 1975 and the commander determined that it should not be removed.      

7.  On 8 January 1976, the applicant’s commander reported that the applicant’s duty status was changed from present for duty to absent without leave (AWOL).  The applicant was dropped from the rolls in desertion on 6 February 1976.

8.  On 2 March 1976, the applicant surrendered to military authorities at Fort Sill, where charges were preferred against the applicant for being AWOL from 7 January to 2 March 1976.
9.  On 3 March 1976, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.

10.  The appropriate authority (a major general) approved his request on 12 March 1976 and directed that he be furnished an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions while on excess leave, on 17 March 1976, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 years, 7 months and 18 days of active service during his current enlistment and had 58 days of lost time due to AWOL.  He had 8 years, 6 months and 14 days of total active service. 

12.  A review of the available records fails to show that the applicant ever sought the assistance of his chain of command or that he ever surfaced his alleged problems to his chain of command.  There is no evidence that he ever applied for a hardship discharge or compassionate reassignment as well.  Additionally, there is no evidence to show that he and his family was authorized to travel to Fort Sill for medical care.

13.  There is no indication in the available records to show that he ever applied to the Army Discharge review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  On 1 July 1962, the 5060 United States Air Force Hospital was reassigned as the United States Army Hospital and on 11 April 1963, the hospital was renamed Bassett Army Community Hospital.  The hospital is located at Fort Wainwright, Alaska in Fairbanks, Alaska.  Personnel at Fort Richardson are authorized to receive medical care at the Elmendorf Air Force Base Hospital located adjacent to Fort Richardson and Bassett Army Community Hospital.  These policies were in effect at the time the applicant was assigned to Alaska.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

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 courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.    

4.  The applicant’s contentions have been noted; however, he has failed to show through the evidence submitted with his application and the evidence of record that his wife was transferred to Fort Sill for medical treatment that could not be accomplished in Alaska and that he was required to take leave to accompany her during that period.

5.  Routinely when patients require treatment outside of the command, medical evacuation orders are published by the hospital for the patient and accompanying family members.  Service members are considered to be in a duty status when this occurs and are not required to take leave for travel of this nature.

6.  At the time the applicant’s unit reported him as being AWOL, he was in a present for duty status, not a leave or temporary duty (TDY) status, as would have been the case if he were accompanying his wife to another medical facility outside of Alaska.  It is also noted that there were many military medical facilities closer to Alaska than the hospital at Fort Sill, which would have had better capabilities to handle such problems as described by the applicant.

7.  The applicant’s contentions are simply not sufficiently mitigating to warrant relief under the circumstances.  While he may have been experiencing personal/family problems at the time, there is no evidence to show that he made any attempt to seek assistance from his chain of command to resolve his problems or at least offer an explanation or mitigating circumstances to explain his absence and misconduct. 

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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

__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)                                         AR20080005737



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ABCMR Record of Proceedings (cont)                                         AR20080005737



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