IN THE CASE OF:	  

		BOARD DATE:	  	  16 October 2008

		DOCKET NUMBER:  AR20080012844 


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, upgrade of his undesirable discharge to an honorable discharge. 

2.  The applicant states, in effect, he had good service starting in June 1971 while attending advanced individual training and airborne jump school.  He also states that he was promoted to the rank of Specialist Four and received medals; however, by the time his service was up, the Army was not a challenge and he decided not to reenlist.  He further states he then turned in all his equipment and took on light duty thinking that he would be out of the Army in a few weeks.

     a.  The applicant states he took his separation physical and signed papers that documented he was healthy, even though he had a hole in his head that had healed.

     b.  The applicant states he was then notified he would be going with his unit to Camp Lejeune, North Carolina for field duty.  He also states he was sent to the field under his protest because he had already taken his physical examination and had no equipment.  He adds that he was given dirty beat-up equipment and an M-16 rifle that was not his.

     c. The applicant states that he slept under a truck that (first) night, it rained during the night, he was soaked from lying in water, and has had sinus problems since that time.  He adds that Department of Veterans Affairs (VA) policy says a veteran should not be placed in a situation that is adverse to his health after his separation physical and that is another reason why his discharge should be upgraded.

     d.  The applicant states, in his young mind, he decided to pack his equipment and rifle and walk to the bus station.  He also states he stayed at his girlfriend’s house, reported to morning formation, and made his presence known; however, he was reported absent without leave (AWOL) even though he was on post
(i.e., Fort Bragg, North Carolina), but not at his duty station (i.e., Camp Lejeune).

     e.  The applicant states that he was confined to post and when his company returned he was put in the stockade.  After a brief discussion with someone at the stockade, he stated he wanted out of the Army and was told he would only lose some benefits.

     f.  The applicant concludes by stating the loss of his child, along with his age and immaturity were factors in his discharge.  He adds that he was told he would only lose some of his benefits, he could upgrade his discharge at anytime, and he would like an upgrade of his discharge so that he may receive VA benefits.

3.  The applicant provides a 2-page self-authored statement, dated 21 July 2008, 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 military service records show that he enlisted in the Regular Army and entered active duty for a period of 3 years on 16 June 1971.  The applicant’s records show his date of birth is 23 October 1952 and at the time of his entry on active duty the applicant was 18 years of age.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).

3.  The applicant's military service records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated
6 December 1972.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about
0700 hours, 4 December 1972, at Fort Bragg, without authority, absenting himself from his unit, to wit:  Company B, 1st Battalion (Airborne), 505th Infantry, 3rd Brigade, 82nd Airborne Division, Fort Bragg, and remaining absent until on or about 0730 hours, 4 December 1972.  The DA Form 2627-1 also shows the applicant did not demand trial by court-martial and that matters in extenuation, mitigation, or defense were not submitted.  The punishment imposed was forfeiture of $25.00 for a period of 1 month and 14 days extra duty.  The DA Form 2627-1 further shows the applicant did not appeal the punishment imposed by the commander in the Article 15 proceedings.

4.  The applicant's military service records contain a DA Form 2627-1, dated 
2 March 1973.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0800 hours,
25 February 1973, at Fort Bragg, without authority, leaving his Guard Post #1 with intent to abandon the same, in violation of Article 86, UCMJ. The DA Form 2627-1 also shows the applicant did not demand trial by court-martial and that matters in extenuation, mitigation, or defense were not submitted.  The punishment imposed was to be reduced to the grade of private (PV2)/pay grade E-2 and forfeiture of $35.00 per month for a period of 2 months.  The DA Form 2627-1 further shows the applicant did not appeal the punishment imposed by the commander in the Article 15 proceedings.

5.  The applicant's military service records contain a DA Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 9 October 1973, with enclosures.  This documentation shows that a line of duty investigation (LODI) was conducted based on an incident occurring at 0410 hours, 25 August 1973, in which the applicant was involved in a 1-car accident on an open road at a time when he was AWOL.  This documentation shows that the determination made in the applicant’s case was “Not in Line of Duty – Not Due to Own Misconduct.” 

6.  The applicant's military service records contain a DA Form 2627-1, dated 
19 November 1973.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about
0900 hours, 3 November 1973, at Fort Bragg, without authority, failing to repair to his appointed place of duty, to wit:  formation at Headquarters and Headquarters Company, 1st Battalion (Airborne), 505th Infantry, in violation of Article 86, UCMJ.  The DA Form 2627-1 also shows the applicant did not demand trial by court-martial and that matters in extenuation, mitigation, or defense were not submitted.  The punishment imposed was to perform 7 days extra duty.  The DA Form 2627-1 further shows the applicant did not appeal the punishment imposed by the commander in the Article 15 proceedings.

7.  The applicant's military service records contain a DA Form 2627-1, dated
16 January 1974.  This document shows nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0800 hours,
11 January 1974, at Fort Bragg, without authority, failing to repair to his appointed place of duty, to wit:  Day Room Orderly, Headquarters and Headquarters Company, 1st Battalion (Airborne), 505th Infantry, in violation of Article 86, UCMJ; for on or about 0900 hours, 12 January 1974, at Fort Bragg, North Carolina, without authority, going from his appointed place of duty, to wit:  Headquarters and Headquarters Company, 1st Battalion (Airborne), 505th Infantry, in violation of Article 86, UCMJ; and for on or about 0700 hours,
14 January 1974, at Fort Bragg, without authority, failing to repair to his appointed place of duty, to wit:  formation at Headquarters and Headquarters Company, 1st Battalion (Airborne), 505th Infantry, in violation of Article 86, UCMJ.  The DA Form 2627-1 also shows the applicant did not demand trial by court-martial and that matters in extenuation, mitigation, or defense were not submitted.  The punishment imposed was reduction to the grade of private (PV2)/pay grade E-2 (suspended for 30 days) and 7 days extra duty. The DA Form 2627-1 further shows the applicant did not appeal the punishment imposed by the commander in the Article 15 proceedings.

8.  The applicant's military service records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 26 April 1974.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0900 hours, 18 April 1974, at Fort Bragg, without authority, absenting himself from his appointed place of duty at which he was required to be, to wit:  Project Transition Course, and remaining absent until on or about 0730 hours, 26 April 1974, in violation of Article 86, UCMJ.  The DA Form 2627 also shows the applicant did not demand trial by court-martial and that matters in extenuation, mitigation, or defense were not submitted.  The punishment imposed was 7 days in the Correctional Custody Facility.  The DA Form 2627 further shows the applicant did not appeal the punishment imposed by the commander in the Article 15 proceedings.

9.  The applicant’s military service records contain a DA Form 2823 (Sworn Statement), dated 20 June 1974.  This document shows that Second Lieutenant William W. E____, Platoon Leader, 2nd Platoon, Company C, 2nd Battalion (Airborne), 505th Infantry, 3rd Brigade, 82nd Airborne Division, Fort Bragg, North Carolina, executed a sworn statement following his initial interview with the applicant.  This document states, in pertinent apart, “[i]n the field [the applicant] would leave without telling anyone where he was going, and one time this resulted in his going AWOL back to Fort Bragg from Camp Lejeune.  His attitude and disinterest in his work in the Army as exhibited by his AWOL’s and missed formations, clearly shows that [the applicant] should not be in the Army.”  This document also shows that the second lieutenant placed his signature on the document, and the captain serving as Adjutant witnessed the document and also placed his signature on the DA Form 2823 on 20 June 1974.

10.  The applicant’s military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 44 (Time Lost Under Section 972, Title 10, United States Code, and Subsequent to Normal Date ETS [Expiration Term of Service]) of this document shows that the applicant was AWOL for 8 days from 18 April 1974 to 25 April 1974; AWOL for 14 days from 30 April 1974 to 13 May 1974; AWOL for 2 days from 28 May 1974 to 29 May 1974; and imprisoned for 62 days from 30 May 1974 to 30 July 1974.

11.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 30 May 1974, that shows the captain serving as Commander, Company C, 2nd Battalion (Airborne), 505th Infantry, 82nd Airborne Division, Fort Bragg, preferred charges against the applicant for violation of Article 86, UCMJ, Charge I with Specification 1, that the applicant did, on or about 30 April 1974, without authority, absent himself from his unit, to wit:  Company C, 2nd Battalion (Airborne), 505th Infantry, located at Fort Bragg, and did remain absent until on or about 14 May 1974; Specification 2, that the applicant did, on or about 0700 hours, 20 May 1974, without authority, fail to go at the time prescribed to his appointed palace of duty, to wit:  Muster Formation at Company C, 2nd Battalion (Airborne), 505th Infantry; Specification 3, that the applicant did, on or about 0830 hours, 24 May 1974, without authority, go from his appointed place of duty, to wit:  Solid Shield Training Exercise, Company C, 2nd Battalion (Airborne), 505th Infantry, located at Camp Lejeune; Specification 4, that the applicant did, on or about 28 May 1974, without authority, absent himself from his unit, to wit:  Company C, 2nd Battalion (Airborne), 505th Infantry, located at Fort Bragg, and did remain absent until on or about 30 May 1974; and Charge II with the Specification that the applicant did, on or about 1630 hours, 24 May 1974, having been duly restricted to the limits of Company C, 2nd Battalion (Airborne), 505th Infantry, located at Fort Bragg, break said restriction.

12.  The applicant's military service records contain a Standard Form (SF) 93 (Report of Medical History) that was completed by the applicant on 31 July 1974.  Item 8 (Statement of Examinee’s Present Health and Medications Currently Used) contains the handwritten statement, “I am in good physical condition to the best of my knowledge” and also shows the applicant placed his signature below this statement.  Item 11 (Have You Ever Had or Have You Now), in pertinent part, shows that in response to the 2 line entries “Sinusitis” and “Head Injury” the applicant placed checkmarks in the “No” column.  Item 25 (Physician’s Summary) of this document contains the entry, “No Significant History” and both the applicant and examining physician placed their signatures on the document on 31 July 1974.  

13.  The applicant's military service records contain an SF 88 (Report of Medical Examination).  This document shows the applicant underwent a separation physical examination on 31 July 1974.  Item 73 (Notes and Significant or Interval History) contains the handwritten statement, “I am in the best of health to my knowledge” and also shows the applicant placed his signature below this statement.  This document also shows that the examining physician reviewed the applicant’s medical records and examined the applicant, and found him qualified for separation under the provisions of Army Regulation 635-200, Chapter 10.  The Clinical Evaluation Notes section contains a stamped statement that reads, “[t]here has been no change in my physical condition since my last final type medical examination on “30 Aug 74” with the following exceptions:  “None.”  Write none, if applicable.”  This item also shows the applicant placed his signature below the statement.

14.  On 25 July 1974, the applicant requested a discharge for the good of the Service under the provisions of chapter 10 of Army Regulation 635-200.  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge or a discharge under other than honorable conditions, if the request is approved; of the possible effects of an undesirable discharge; and the procedures and rights available to the applicant.

15.  The applicant signed his request for discharge which showed that he was making the request under his own free will and had not been subjected to any coercion whatsoever by any person; that he was afforded the opportunity to consult with counsel; that he was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the VA; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf, which would accompany his request for discharge; however, the applicant elected not to submit statements in his own behalf.



16.  On 26 July 1974, the captain serving as Commander, Company C,
2nd Battalion, 505th Infantry, 82nd Airborne Division, Fort Bragg, recommended approval of the applicant’s request for discharge from the Army under the provisions of chapter 10 of Army Regulation 635-200.  The commander stated, “[the applicant] refuses to adhere to the most minimal standard of military life.  [The applicant] cannot adjust to the discipline or routine of Army life and has made no attempt to take advantage of the many opportunities to do so.”  He also recommended the applicant be issued an Undesirable Discharge Certificate.

17.  On 7 August 1974, the lieutenant colonel serving as Commander,
2nd Battalion (Airborne), 505th Infantry, 82nd Airborne Division, Fort Bragg, recommended approval of the applicant’s request for discharge from the U.S. Army, under the provisions of chapter 10 of Army Regulation
635-200, with an Undesirable Discharge Certificate.  The lieutenant colonel stated, “[d]ue to [the applicant’s] inability to adjust to military life, his lack of respect for military authority, and his record of acts of misconduct within this unit warrants discharge from the service.”  The commander recommended his immediate discharge from military service and the applicant be issued an Undesirable Discharge Certificate.

18.  The colonel serving as Commander, 3rd Brigade, 82nd Airborne Division, Fort Bragg, recommended approval of the applicant’s request for discharge from the U.S. Army, under the provisions of chapter 10 of Army Regulation 635-200, with an Undesirable Discharge Certificate.  The colonel noted the applicant had been held in the service beyond his expiration term of service because of the Bad Conduct Special Court-Martial charges preferred against him.

19.  On 27 August 1974, the major general serving as Commander, 82nd Airborne Division, Fort Bragg, approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, Chapter 10 and directed the applicant be furnished a DD Form 258A (Undesirable Discharge Certificate).

20.  The applicant's military service records contain a copy of his DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on
30 August 1974 with an undesirable discharge, characterized as under other than honorable conditions, under the provisions of Army Regulation 635-200, Chapter 10, with Separation Program Designator (SPD) Code “KFS,” and he was issued a DD Form 258A (Undesirable Discharge Certificate).  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal and Parachutist Badge.  Item 21 (Time Lost) contains the entry “86 days” and Item 27 (Remarks) contains the entry, “Item 21  86 days lost under 10 USC 972.”  This document also shows that at the time of his discharge the applicant had completed 2 years, 11 months, and 19 days net active service.

21.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

22.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

23.  In support of his application the applicant provides a self-authored statement, dated 21 July 2008 and DD Form 214, with an effective date of
30 August 1974.  The self-authored statement was summarized in the applicant’s request and the DD Form 214 was previously introduced and considered as evidence in this Record of Proceedings.

24.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

25.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  
It identifies the SPD code of “KFS” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial.

26.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

27.  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.

28.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge should be upgraded to an honorable discharge because he was young, immature, placed in a situation that was adverse to his health after his separation physical examination, and not properly advised about his benefits.

2.  The evidence of record shows that the applicant absented himself from his appointed place of duty when, without authority, he departed the field training exercise at Camp Lejeune, on 24 May 1974.  The evidence of record also shows the applicant completed his separation physical examination on 31 July 1974 and, at that time, the applicant confirmed that he was in good physical condition.  In addition, the examining physician found the applicant qualified for separation from the U.S. Army.  Moreover, on 30 August 1974, the applicant confirmed there had been no change in his physical condition since his physical examination on 31 July 1974.  Thus, the evidence of record refutes the applicant’s claim that he “had already taken his physical examination” prior to the field training exercise at Camp Lejeune and that he was “placed in a situation that was adverse to his health after his separation physical.”

3.  The applicant contends he developed sinus problems while in the Army and has had sinus problems since then.  However, the Report of Medical History that the applicant completed on 31 July 1974 refutes this contention.  Therefore, the applicant provides insufficient evidence in support of this claim.



4.  The applicant contends he had a “hole in his head that had healed” while in the Army.  However, the Report of Medical History that the applicant completed on 31 July 1974 refutes this contention.  Therefore, the applicant provides insufficient evidence in support of this claim.

5.  The applicant contends that he was incorrectly reported AWOL because he was on post at Fort Bragg, when he was reported AWOL.  The evidence of record shows that the applicant’s place of duty at the time he was reported AWOL on 24 May 1974 was Camp Lejeune, and that he left his placed of duty without authority.  In addition, the evidence of record shows the applicant acknowledged guilt to this offense when he submitted his request for discharge under the provisions of Army Regulation 635-200, Chapter 10.  Thus, the evidence of record refutes the applicant’s claim.

6.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge because he was a young Soldier and immature at the time.  Records show that the applicant was 18 years of age when he entered active duty in the Army, 21 years of age during his numerous periods of AWOL, and nearly 22 years of age when he submitted his request for discharge for the good of the Service.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service during this period.

7.  The evidence of record shows that the applicant was charged with committing an offense, the punishment for which included a bad conduct or dishonorable discharge, and that the applicant voluntarily acknowledged guilt to the offense charged.  The evidence of record also shows that the applicant's legal counsel advised him of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, or a discharge under other than honorable conditions, if the request is approved; of the effects of the request for discharge; and the procedures and rights available to the applicant.  The evidence of record further shows that the applicant signed his request for discharge which showed that he was making the request under his own free will and had not been subjected to any coercion whatsoever by any person; that he was afforded the opportunity to consult with counsel; that he was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  Therefore, in view of all of the foregoing, the applicant provides insufficient evidence to support his claim that he was not properly advised on the impact of an undesirable discharge and its effect on his eligibility for benefits.

8.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

9.  The evidence of record shows that charges were preferred against the applicant for violation of Article 86, UCMJ (i.e., being AWOL from 30 April 1974 to 14 May 1974 and from 28 May 1974 to 30 May 1974); failing to go to his appointed place of duty and departing from his appointed place of duty without authority); and for violation of Article 134, UCMJ (i.e., breaking restriction).  The evidence of record also shows the applicant had 86 days (i.e., nearly 3 months) of time lost during the period of service under review.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

10.  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

____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)                                         AR20080012844



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ABCMR Record of Proceedings (cont)                                         AR20080012844



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