IN THE CASE OF:	

		BOARD DATE:	 26 February 2009 

		DOCKET NUMBER:  AR20080015226 


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 under honorable conditions discharge he received on 4 September 1975 be upgraded to honorable, that the reason for his discharge be changed to convenience of the Government, and his reentry (RE) and Separation Program Designator (SPD) code be corrected to reflect the change of the new reason for his discharge.

2.  The applicant states that his discharge is preventing him from using his veterans benefits and from living a normal life.  The applicant explains that a gas tank blew up in his face which almost blinded him in one eye and almost deafened him.  After that experience, he was scared and went absent without leave (AWOL).  

3.  The applicant continues that his situation was worsened because "I didn't speak or understanded (sic) the English language well back then.  My commander offered me a discharge and I took the offer without really understanding its impact."  The applicant adds that after spending 3 or more months in the hospital, his father died and the mother of his daughter died.

4.  In a second statement to the Board, the applicant tells of how his father was an alcoholic and very abusive, beating him every day.  He enlisted in the Army to escape his father.

5.  The applicant provides a letter in support of his request attesting to his being very mannered and having good morals.

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 that he enlisted in the Regular Army on 29 June 1974.  

3.  On 23 June 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being AWOL from 18 to 19 June 1975 and for dishonorably failing to pay his cab fare.

4.  The applicant appealed the punishment imposed, stating that it was a first offense, that he was going to "take care of" the cab fare, and that his punishment was disproportional to others in similar situations because his commander discriminated against Spanish-speaking people.

5.  The battalion commander forwarded the appeal to the next higher headquarters.  In the correspondence forwarding the appeal, the battalion commander stated that the applicant had two prior offenses involving disobeying orders and, while NJP was initiated for those two offenses, neither were completed due to the lengthy time delays resulting from the applicant's hospitalization.  As for the outstanding taxi fare, as of the date NJP was imposed, the applicant had not made restitution.  The battalion commander added that the evidence (including the applicant's own testimony) clearly indicated that the applicant neither had the money to pay the fare nor could he obtain the money in a timely manner.  As for discrimination, the battalion commander stated he could detect no hint of discrimination on the part of the company commander.  To the contrary, "although [the applicant] both speaks and understands English exceptionally well, the company commander utilized a Spanish speaking NCO [noncommissioned officer] to assist him in his counseling sessions with [the applicant]."

6.  The applicant's separation packet is not contained in his records.  However, he was issued a general discharge on 4 September 1975 for Unsuitability – Apathy, Defective Attitude or Inability to Expend Effort Constructively.

7.  On 26 June 1979, the applicant again enlisted in the Regular Army.  He completed training and he was awarded the military occupational specialty of infantryman.  On 27 January 1984, he was discharged under other than honorable conditions (UOTHC) by reason of for the good of the service - in lieu of court-martial.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was given shows that he had time lost from 2 to 3 January 1980;         31 January to 24 February 1980; 26 February to 20 March 1980; 1 April 1980 to 25 June 1982; 7 to 8 January 1984; and 14 to 23 January 1984.  Based on that time lost, even though the applicant's DD Form 214 covered the period 26 June 1979 to 27 January 1984, he only had 9 months and 14 days of creditable service.

8.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5b(3) provided for the separation of individuals whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was directed, a general or honorable discharge was issued.

9.  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.  

10.  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.  Since the applicant specifically stated that he was requesting the under honorable conditions discharge he received on 4 September 1975 be upgraded, his discharge for unsuitability is being considered, and not his under other than honorable conditions discharge for the good of the service - in lieu of trial by court-martial.

2.  While there are no records to confirm that the applicant was injured when a gas tank blew up in his face, there is evidence to show that he was hospitalized for a lengthy period of time.  However, if the applicant was scared because of the incident, he should have requested psychiatric or religious counseling.  Being scared does not justify a Soldier going AWOL.

3.  However, there is no evidence that the applicant went AWOL during his first enlistment (except from 18 to 19 June 1975), which is the period of service being considered.  His multiple offenses of AWOL occurred during his second enlistment.

4.  In addition, the applicant had been pending NJP for two instances of disobeying an order which were never finalized, and for failure to pay his cab fare.

5.  While the applicant stated that his situation was worsened because "I didn't speak or understanded the English language well back then.  My commander offered me a discharge and I took the offer without really understanding its impact," the applicant's battalion commander stated that the applicant spoke and understood English exceptionally well and the company commander utilized a Spanish-speaking NCO to assist him in his counseling sessions with the applicant.  As such, this argument is not accepted.

6.  While the applicant states that after spending 3 or more months in the hospital his father died and the mother of his daughter died, he has not provided any documentation to substantiate that contention.  

7.  While the applicant's discharge packet is not contained in his records, the applicant had at least one NJP and had other instances of misconduct.  Such a record certainly does not warrant an honorable discharge.  As such, the applicant is not entitled to an upgrade of his discharge to fully honorable.

8.  Since the reason for his discharge is not being changed, there is no basis to change his RE and SPD codes.

9.  While it is regrettable that the applicant's discharge is preventing him from using his veterans benefits and from living a normal life, this is insufficient to warrant upgrading a properly issued discharge.

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)                                         AR20080015226



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ABCMR Record of Proceedings (cont)                                         AR20080015226



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