IN THE CASE OF:	

		BOARD DATE:	  12 February 2009

		DOCKET NUMBER:  AR20080017012 


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 (UD) be upgraded to fully honorable and that he be issued a replacement National Defense Service Medal (NDSM).

2.  The applicant provides a statement in which he details the events which led to his UD that began with his 38-day old daughter dying, then his wife getting pregnant again.  Subsequently, he was deployed to Korea while his wife was pregnant, and his wife filed for divorce while he was in Korea.  He was denied a compassionate reassignment when he discovered his wife was filing for divorce.  When his tour in Korea was ending, he came up on orders for infantry training.  The applicant attempted to change his orders to no avail.  It was at that point he decided he could not cope with infantry training with all of his other stressors, so he departed absent without leave (AWOL) knowing that they would have to discharge him if he went AWOL.  He believed that he had been betrayed by the Army.

3.  The applicant cites his exemplary service while on active duty and his community service after his discharge.

4.  The applicant provides two separation documents (DD Forms 214) and three letters of support.


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 16 April 1971, was awarded the military occupational specialty of armor crewman, and was promoted to pay grade E-4.  He immediately reenlisted on 22 May 1973.

3.  On 1 September 1976, court-martial charges were preferred against the applicant for being AWOL from 22 April 1976 to 25 August 1976.

4.  On 2 September 1976, the applicant requested discharge for the good of the service in lieu of court-martial.  In that request he acknowledged guilt of the offense charged or of a lesser included offense which would warrant a punitive discharge.  He also acknowledged that he could be given an undesirable discharge if his request was approved.

5.  The applicant submitted a statement to the convening authority along with his request for discharge.  In that statement he details the same sequence of events that he provided in his application to this Board.  He ended his statement with "My attitude toward the Army now is that if they cannot take care of their N.C.O. they don't care about anyone and I do not want any part of it.  My attitude toward the Army should my discharge be disapproved is that I could not serve properly with someone who cannot take care of its own.  I have lost all respect for most officers and N.C.O.'s and when that has happened you just cannot function under those circumstances."

6.  The applicant's request was approved by the appropriate authority and the applicant was given an undesirable discharge on 1 October 1976.

7.  Army Regulation 635-200 (Personnel Separations) 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

8.  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.  

9.  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.  While it is unfortunate that the applicant's 38-day old daughter died and his wife got pregnant again when he was getting ready to deploy to Korea, these are life events which the Army could not control or influence.  While it is certainly unfortunate that the applicant's marriage ended while he was deployed, it does not excuse his going AWOL.

2.  As for the applicant being ordered to infantry training, the Army must manage one of the largest forces in the world.  In order to manage such a large force, the needs of the Army must be considered.  Those needs constantly change.  Obviously, at the time in question the Army needed infantryman and the applicant's marriage situation had finalized.  The fact that the applicant decided he could not cope with infantry training with all of his other stressors was unfortunate.  However, his violation the Uniform Code of Military Justice in a manner specifically intended to force the Army to discharge him in order to get out of complying with his orders was inexcusable.

3.  The applicant provided the same set of circumstances that he provided to this Board to the convening authority who decided that his service should be characterized as under other than honorable conditions and that he should be issued an Undesirable Discharge Certificate.  It would appear from the evidence of record that the convening authority's decision was well founded.

4.  While it is commendable that the applicant has chosen to live a productive life and that he has many commendable attributes, these are not sufficient in and of themselves to warrant upgrading a properly issued discharge.

5.  As for the applicant's request for a replacement NDSM, that is an administrative matter which does not require the authority of the Board.  The applicant will have to submit a request for replacements of his medals to the National Personnel Records Center, 1 Reserve Way, St. Louis, Missouri  63132, which will verify which medals and ribbons he is authorized and forward a request to U.S. Army Tank Automotive and Armaments Command, Clothing and Heraldry (Product Support Integration Directorate), in Philadelphia, Pennsylvania, to have them reissued.

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)                                         AR20080017012



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017012



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1