IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080006230 


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.

2.  The applicant states, in effect, that he made several bad decisions and so did the Army.  He states that he did not realize he could not join the Army as 1-A-0 (Conscientious Objector-Noncombatant) but could only be drafted.  His recruiter held his draft card and enlisted him in the Army as a Combat Engineer even though he knew the applicant's draft classification was 1-A-0.  The applicant further states that at Fort Knox, Kentucky he was informed that he could not be a Combat Engineer and he was forced into the medical field.  The applicant also states that he tried everything to get his classification changed and stay at Fort Knox to become an infantryman, but no one would let him. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 18 May 1973 and an Army Europe Form 1080 (Evaluation of On-the-Job-Training Army Medical Service Personnel), dated 30 September 1969.

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 DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 16 July 1968, shows he enlisted in the Regular Army for a 3-year term of service in Army Career Group (ACG) 12A (Combat Engineer). 

3.  An undated DA Form 2496-1 (Disposition Form) shows that the applicant voluntarily waived his enlistment commitment for ACG 12A made at the time of his enlistment because of his being a conscientious objector.  He accepted the alternate option in ACG 91A (Medical).  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).

4.  On 30 October 1968, the applicant was convicted, pursuant to his plea, by a special court-martial of being absent without leave (AWOL) for the period 
19 August 1968 through 28 September 1968.  His sentence consisted of confinement at hard labor for two months (suspended) and a forfeiture of 
$68.00 pay per month for two months.

5.  A DD Form 458 (Charge Sheet), dated 9 March 1972, shows charges were preferred against the applicant for being AWOL for the period 5 February 
1970 through 22 March 1973.

6.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

7.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; and that he may be deprived of his 



rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

8.  The applicant submitted a statement on his own behalf that stated, "Dear Sir I am writing you to ask for a discharge Sis every since (sic) I came into the Army Ive had nothing but trouble and trouble for my family.  Sir for the good of the Service and for the welfare of my wife and kids I beg of you for a discharge."

9.  On 10 May 1973, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an undesirable discharge certificate and be reduced to the lowest enlisted grade.  On 18 May 1973, the applicant was discharged from active duty and was issued an undesirable discharge, characterized as under other than honorable conditions after completing a total of 1 year, 7 months, and 6 days of creditable active service with 1182 days of lost time due to AWOL.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 29 March 1977 and on 13 March 1981 the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the reason for discharge and characterization of his discharge was proper as under other than honorable conditions.

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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. At the time, an undesirable discharge was normally considered appropriate.

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.  



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 he was misinformed by his recruiter.  However, evidence of record shows that the applicant initially enlisted to be a combat engineer.  His status for the draft had him slated as 1-A-0, conscientious objector noncombatant.  Before the applicant attended advanced individual training he waived his enlistment commitment and accepted the option to be in the medical field.  There is no evidence that shows he tried to be an infantryman.  Therefore, there is an insufficient basis to support this argument.  

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  The applicant's records show that he received one special court-martial and had two instances of AWOL, one of which was lengthy.  He had completed 1 year, 7 months, and 6 days of service on his 3-year term of service with a total of 
1182 days of lost time due to being AWOL.   Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general 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.



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 _   _______   ______________
       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)                                         AR20080006230



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ABCMR Record of Proceedings (cont)                                         AR20080006230



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