IN THE CASE OF:	  

		BOARD DATE:	  	  4 December 2008

		DOCKET NUMBER:  AR20080015193 


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 a general discharge.

2.  The applicant states, in effect, he was young, foolish, and made a mistake at the time.  He also requests that the Board consider the 18 months of "good time" that he served.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), with an effective date of 16 April 1974 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 13 December 1971.  The applicant’s records also show his date of birth is 6 December 1954 and, at the time of his entry on active duty, he was 17 years of age.  Upon completion of basic combat and advanced individual training, the applicant was awarded military occupational specialty (MOS) 71F (Postal Clerk).  He was later reclassified into MOS 71N (Movement Specialist).

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
17 October 1972.  This document shows that non-judicial punishment was imposed by the company commander against the applicant in that he did, on or about 2200 hours, 13 October 1972, at Neureut Kaserne (Federal Republic of Germany (FRG)), wrongfully depart his appointed placed of duty and assault a member of his unit, which constitutes conduct punishable under the UCMJ.  His punishment consisted of forfeiture of $57.00, restriction to Neureut Kaserne for
5 days, and reduction to private (PV2)/pay grade E-2 (suspended for a period of 30 days).

4.  The applicant’s military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 38 (Record of Assignments) shows, in pertinent part, that the applicant went absent without leave (AWOL), effective 1 October 1973; he was dropped from the rolls (DFR) of the Army as a deserter, effective
30 October 1973; and he was returned to military control and assigned to the U.S. Army Personnel Control Facility, Fort Campbell, Kentucky, effective
20 February 1974.  Item 44 (Time Lost Under Section 972, Title 10, U. S. Code and Subsequent to Normal Date ETS [Expiration Term of Service]) shows the applicant was in an AWOL and DFR status for 142 days from 1 October 1973 through 19 February 1974.

5.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 21 March 1974, that shows the major serving as Commander, U.S. Army Personnel Control Facility, Fort Campbell preferred charges against the applicant for violation of Article 86, UCMJ, with the specification that, on or about 1 October 1973, without authority, he absented himself from his organization, to wit:  Detachment 3 B-W Support District, Headquarters Support District, B-W, Support Activity, located at Karlsruhe (FRG), and did remain so absent until on or about 20 February 1974.

6.  On 26 March 1974, the applicant requested a discharge for the good of the Service - in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  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 an undesirable discharge, if the request is approved; of the effects of the request for discharge; and the procedures and rights available to the applicant.

7.  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 Veterans Administration; 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.  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 and that he submitted a statement in his own behalf.

8.  The applicant’s separation action contains a copy of the applicant's statement, dated 4 March 1974.  The applicant indicated, in his own handwriting, "[w]hile I was overseas I started doing hard drugs, which afterwards I felt like I couldn't do without.  My habit was costing me more than the Army was paying me.  I didn't know what to do, or where to turn.  I later went to the drug center with my problem.  But, I felt it wasn’t doing me any good.  I took leave for 30 days and went home and while I was there I couldn't get a hold of anything to do so I was able to stop.  But after I went back to Germany I started to [do] drugs again.  I later came back on leave again to get married, and this time I haven't done any drugs and I'm in a state of mind where I don't need any.  I'm off my habit.  While I was still on leave my wife started have (sic) eye problems, to which we later found out that she was going blind.  I then got in touch with the Red Cross in my home town, but I felt that they couldn't help.  I couldn't afford taking my wife to Germany and I wasn't going to leave her in the States, knowing that maybe the next time I come (sic) home she might be completely blind.  I feel that it would be a waste of my time and the Army's by keeping me in.  I have a civilian job and a home.  All I want is out."  The statement also shows that the applicant placed his signature on the document.

9.  On 27 March 1974, the major serving as Commander, U.S. Army Personnel Control Facility, Fort Campbell, 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 also recommended the applicant be issued a DD Form 258A (Undesirable Discharge Certificate).

10.  On 28 March 1974, the lieutenant colonel serving as Acting Commander, Headquarters Command, Fort Campbell, concurred with the unit commander's recommendation and recommended approval of the applicant’s request for discharge from the Army, under the provisions of chapter 10 of Army Regulation 635-200, with an Undesirable Discharge Certificate.

11.  On 4 April 1974, the major general serving as Commander, 101st Airborne Division (Airmobile) and Fort Campbell, Fort Campbell, approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service - in lieu of trial by court-martial and directed the applicant be reduced to private (PV1)/pay grade E-1 prior to execution of the discharge.

12.  The applicant's military service records contain his DD Form 214 that shows he was discharged on 16 April 1974, with an Undesirable Discharge Certificate, with service characterized as under other than honorable conditions, in accordance with the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service - in lieu of trial by court-martial, with SPD “246,” and issued a DD Form 258A (Undesirable Discharge Certificate).  Item 21 (Time Lost - Preceding Two Years) shows the applicant had 142 days time lost under Title 10, U. S. Code, section 972.  The DD Form 214 also shows that, at the time of his discharge, the applicant had completed 1 year, 11 months, and 12 days of net active service this period.

13.  The applicant's military service records are absent any evidence that he submitted a request for extension of ordinary leave, request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal/family medical reasons.

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

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

16.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration 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 General and Undesirable Discharge Certificates.  Chapter 10 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 - in lieu of trial by court-martial.

17.  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 of “246” 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.

18.  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.

19.  Army Regulation 635-200, the version in effect at the time, provided that an undesirable discharge 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 that his undesirable discharge should be upgraded to general because he was young, made a mistake when he went AWOL and did not return to his unit overseas, and that the 18 months of "good time" he served should also be considered.

2.  Records show the applicant was 18 years of age when he went AWOL from his unit and was dropped from the rolls and placed in a deserter status.  Records also show that the applicant was 19 years of age when he submitted his request for discharge for the good of the Service – in lieu of trial by court-martial.  However, 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.
3.  There is no evidence that the applicant submitted a request for extension of ordinary leave, request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal reasons
(i.e., his wife's medical condition).  There is also no evidence of record that Army officials denied such a request.

4.  Records show the applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service – in lieu of trial by court-martial 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.

5.  The evidence of record shows that charges were preferred against the applicant for violation of Article 86, UCMJ (i.e., being in an AWOL status from
1 October 1973 through 19 February 1974).  The evidence of record also shows the applicant had 142 days (i.e., nearly 5 months) time lost during the period of service under review.  In addition, records show he completed less than 2 years of his 3-year enlistment.  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.

6.  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)                                         AR20080015193



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ABCMR Record of Proceedings (cont)                                         AR20080015193



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