IN THE CASE OF:	

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080014589 


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, an upgrade of his undesirable discharge to an honorable discharge. 

2.  The applicant states, in effect, that his service record does not accurately reflect the total character of his service.  He also states that he acknowledges that his service was less than exemplary; however, there are mitigating circumstances that he believes do not warrant the discharge he received.  He voluntarily enlisted in the US Army on 30 October 1967 and at that point in time there was a lot of protesting and dissension in the country.  But even with these conditions, he thought that it was his patriotic duty to serve his country.  He further states, in effect, that he joined the military to learn something and he wanted to work with helicopters.  He signed a contract that guaranteed that he would become an AH-1 Single Rotor Helicopter Mechanic, Crew Chief (military occupational specialty (MOS) 67N). 

3.  The applicant also states that in 1969 he was stationed in Kaiserslautern, Germany, with the 24th Engineer Group.  He worked at Sembach Air Force Base as a Helicopter Mechanic (which was his MOS) and was then assigned to shovel coal for 12 hours per day.  He knows this was not a punitive action and believes that he was assigned to this duty because he was one of the newest members of the unit.  After a lengthy period of time serving in this capacity, he attempted to utilize his chain of command to seek redress.  Unfortunately, he did not receive a response to his grievance.  He had joined the Army to work as a mechanic, not shovel coal.  He felt that his rights had been violated and he went absent without leave (AWOL).  In retrospect, he can see that this was the act of a young and impetuous Soldier.  He had received no counseling from his superiors and was far away from his family and friends.  He voluntarily returned to face the consequences and spent six months in the stockade.  After six months, he was given the option of returning to his unit, or remaining in the stockade for another six months, or accepting an early release from the military.  If returned to his unit, it meant still shoveling coal and he did not want to do that.  His going AWOL was a direct result of being assigned to that duty.  He accepted the early release option.

4.  The applicant further states that when he accepted the early release, he did not have legal representation to advise him of the ramifications of his decision.  He had been told that he would not receive a dishonorable discharge.  He did not realize that there were categories other than dishonorable and that they would impact his life after he left the military.  He believes the Army violated its contract with him by taking him out of his MOS for which he signed up and used him simply to shovel coal.  He felt that his only alternative to redress was to go AWOL.  However, even though he was young and headstrong, he quickly realized he had made a mistake and paid for it for many years.  He would like the Army to meet him halfway and realize that although he was wrong to go AWOL, the Army is culpable because it violated its contract with him and then compounded the situation by not properly counseling him.  The Army also did not advise him that he was going to receive a less than honorable discharge, nor the ramifications associated with it.  Since his discharge, he has led a good life.  Now, for himself, his children, and grandchildren, he would like his discharge changed to that of honorable.   

5.  In support of his application, the applicant provides four character reference letters and a copy of his DD Form 214 (Armed Forces of the United States Report or Transfer or Discharge).

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 records show he enlisted in the Regular Army, in pay grade E-1, on 30 October 1967, for 3 years, at 20 years of age.  He completed basic and advanced individual training and was awarded MOS 67N, Crew Chief Aircraft Mechanic on 23 April 1968.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignments), shows his served in his duty MOS 67N (Helicopter Repairman) at Fort Campbell, Kentucky from 2 October to 6 December 1968.  He also served in that MOS during his service in Germany from 17 March to 25 September 1969, when he was dropped from the rolls for desertion.  

4.  The applicant's records contain a copy of an unclassified message, dated 7 May 1969, that shows he arrived at the 24th Engineering Group on 15 January 1969, was granted emergency leave from the Personal Affairs Branch, and departed AWOL on 31 January 1969.  He returned from AWOL on 19 February 1969 and received an Article 15 (his records do not contain a copy of this punishment) on 7 March 1969.  He departed the 24th Engineering Group on 13 March 1969 enroute to the 21st Replacement Battalion, APO, New York.

5.  On 20 June 1969, the applicant was reported AWOL and dropped from the rolls on 24 June 1969.  On 18 July 1969, he was apprehended at the German-Switzerland Border and returned to military control.  

6.  On 5 August 1969, the applicant was convicted by a summary court-martial of one specification of AWOL from 20 June to 18 July 1969.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $75.00 pay per month for one month, and confinement at hard labor for 21 days.  The sentence was approved on 8 August 1969.

7.  The applicant was again reported AWOL on 27 August 1969 and dropped from the rolls of his organization on 25 September 1969.

8.  On 2 October 1969, the applicant's parents were advised of his AWOL since 27 August 1969.  His parents were also advised that when the applicant returned to military control he could face a court-martial and possible dishonorable dismissal from military service.  

9.  A Report of Suspension of Favorable Personnel Action, dated 22 January 1970, shows the applicant was apprehended on 22 January 1970 in Kaiserslautern, Germany, by German authorities in a narcotics raid.  He was placed in pretrial confinement on 22 January 1970.

10.  On 22 January 1970, a Charge Sheet (DD Form 458) was prepared by the Commander, Headquarters and Headquarters Company, 24th Engineer Group. The applicant was charged with one specification of AWOL from 27 August 1969 to 22 January 1970.

11.  A Criminal Investigation Division Report of Investigation, dated 27 January 1970, revealed that the applicant was in an apartment at the time it was searched and about 15 grams of suspected hashish were found on his person.  The applicant was apprehended by the German authorities and subsequently released to the military police.  

12.  On 3 April 1970, the applicant appeared before a special court-martial with counsel and was charged with one specification of AWOL from 27 August 1969 to 22 January 1970.  The military judge ascertained that the applicant had been informed of his right to be defended by legally qualified counsel, at no expense to him.  The military judge asked the applicant if he understood that right and he responded that he did.  The military judge approved the applicant's request that he be tried by the military judge alone.  The military judge also explained fully the meaning and effect of a plea of guilty.  The applicant indicated that he understood the elements of the offense and his plea of guilty.  The military judge announced that he found the plea of guilty to be voluntary and made with full knowledge of its full meaning and effect.  Pursuant to the applicant's plea, the military judge found him guilty of the specification of the charge and sentenced him to confinement at hard labor for two months and a forfeiture of $40.00 pay per month for five months.  The sentence was approved on 26 May 1970, with the forfeiture of pay due on or after the date of adjudgment.  

13.  On 20 April 1970, the applicant's unit commander recommended him for separation from the Army before the expiration of his term of service under the provisions of Army Regulation 635-212, paragraphs 4a and 6a(4) and recommended he be furnished an undesirable discharge.  The unit commander stated that the action was recommended because of the attitude, repeated commission of petty offenses, habitual shirking, courts-martial convictions, and the probability of rehabilitating the individual.  

14.  On 24 April 1970, after meeting with counsel, the applicant acknowledged receipt of his proposed elimination from the service for unfitness.  He elected not to make a statement in his own behalf or to have his case heard before a board of officers.  He acknowledged he understood the effects of a general discharge and that he may be ineligible for benefits as a veteran if an undesirable discharge was issued.  

15.  On 30 April 1970, the applicant's group commander concurred with the unit commander's action.  The group commander stated the separation for unfitness under Army Regulation 635-212 had been fully explained to the applicant and his parents on their visit there during the applicant's recent court-martial.  He also stated that all efforts to rehabilitate the applicant had proven fruitless and he was not considered suitable for continued military service.  He recommended the applicant be issued an undesirable discharge.

16.  On 22 May 1970, the appropriate separation authority approved the discharge under the provisions of Army Regulation 635-212, and directed the issuance of an Undesirable Discharge Certificate.  

17.  The applicant was discharged on 1 June 1970, in pay grade E-1, under the provisions of Army Regulation 635-212, with a character of service of under conditions other than honorable and issued an Undesirable Discharge Certificate.  He was credited with 1 year, 5 months, and 14 days total service and 413 days lost time due to AWOL and confinement.

18.  There is no evidence the applicant applied for a discharge upgrade to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

19.  The applicant submits three character reference letters attesting to his outstanding citizenship and good post-service character.  The authors of these letter, an Army noncommissioned officer, an Army officer, and a retired police officer, all requested the applicant receive favorable consideration of his request for an upgrade of his discharge.

20.  Army Regulation 635-212 (Enlisted Soldiers), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate.

21.  Army Regulation 635-200 (Enlisted Separations), paragraph 3-7a provides that an honorable discharge is a separation with honor.  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.
22.  Army Regulation 635-200, paragraph 3-7b, also 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 contentions have been noted; however, the evidence of record shows that the applicant was convicted by summary court-martial on 8 August 1969 of 28 days of AWOL and by special court-martial on 3 April 1970 of AWOL from 27 August 1969 to 22 January 1970.  Contrary to the applicant's assertions, the evidence shows that he appeared before the special court-martial with counsel.  Before the court-martial, the applicant also received counseling from the military judge pertaining to his rights.  The applicant requested that he be tried by the military judge alone.  The military judge asked the applicant is he understood the elements of the offense and his plea of guilty and he indicated, "yes."  

2.  The evidence also shows that in recommending approval of the applicant's discharge, his group commander stated that the separation for unfitness had been fully explained to the applicant and his parents on their visit during the applicant's court-martial.  The group commander also stated the applicant was considered not suitable for continued military service and should be separated from the Army with an undesirable discharge.  The evidence further shows that after consulting with counsel, the applicant acknowledged the proposed separation action for unfitness.

3.  The applicant's contention that he was removed from his MOS 67N and then assigned to shovel coal has been considered.  However, the evidence shows he served in his assigned MOS 67N from 2 October through 6 December 1968 and upon his assignment in Germany from 17 March 1969 until he was dropped from the rolls for desertion.  There is no evidence that the applicant served in any other MOS or was assigned/performed duties other than those of a helicopter repairman during his period of service.  There is also no evidence that he sought redress through his command, if he felt he was being treated unfairly or that his rights were being violated.  

4.  The documentation submitted in support of his application was reviewed; however, the documentation provided neither probative evidence nor a convincing argument in support of an upgrade of his undesirable discharge.  The applicant has provided insufficient evidence to show that his discharge was unjust or that he deserves an honorable or a general discharge now.  He also has not provided evidence sufficient to mitigate the character of his discharge.  In the absence of evidence to the contrary, the character of the discharge is commensurate with the applicant's overall record of military service. 

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  At no point was the applicant unaware of his offense and the cause for separation.

6.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

7.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

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)                                         AR20080014589



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ABCMR Record of Proceedings (cont)                                         AR20080014589


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