IN THE CASE OF:	  

		BOARD DATE:	  	  15 January 2009

		DOCKET NUMBER:  AR20080017292 


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, at the time he was young, newly married, and experiencing several personal problems that caused him to go absent without leave (AWOL) from his unit.  He also states, during the processing of his request for discharge, his first sergeant and commander told him that his discharge would be upgraded to an honorable discharge within 6 months of his discharge from the Army.  The applicant further states that he reviewed his records in 2007 and discovered his discharge had not been upgraded.  He adds that he has matured since then and continues to be a responsible citizen in his community.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), with an effective date of 8 October 1975.

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 11 January 1974.  The applicant’s records show his date of birth is 21 August 1952 and he was 21 years of age when he enlisted in the Army.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 63A (Mechanic Maintenance Helper).

3.  The applicant’s military personnel records contain a DA Form 4187 (Personnel Action), dated 21 January 1975, that shows his duty status was changed from present for duty (PDY) to AWOL, effective 0730 hours, 15 January 1975.

4.  The applicant’s military personnel records contain a DA Form 4187, dated
18 February 1975, that shows his duty status was changed from AWOL to DFR [dropped from rolls] – deserter, effective 0730 hours, 14 February 1975.

5.  The applicant’s military personnel records contain a DA Form 4187, dated
1 August 1975, that shows his duty status was changed from DFR to returned to military control (RMC), effective 2130 hours, 25 July 1975.

6.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 20 August 1975, that shows the Acting Commander, U.S. Army Personnel Control Facility, Headquarters Command, Fort Campbell, Kentucky, preferred charges against the applicant, in that he did, on or about 15 January 1975, without authority, absent himself from his unit, to wit:  Headquarters and Headquarters Company, 1st Battalion, 12th Cavalry, 1st Cavalry Division, located at Fort Hood, Texas, and did remain so absent until on or about 25 July 1975.

7.  On 20 August 1975, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service).  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 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.



8.  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 acknowledged guilt to the offenses charged; 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 [now known as 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 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.

9.  The applicant elected to submit a sworn statement that was included in his request for discharge for the good of the service.  In his statement, the applicant stated, “I hate the Army.  I wish to get out of the Army because I didn’t want to come in anyway.  I was blusted (sic) in 1973 for contributing to a minor.  So I join (sic) the army and then found out I didn’t have to join because I was found not guilty.  But it was too late.  I hate the Army.  I can not follow orders.  And I can make better money on the outside.  It would be best for the Army and me to let me out.  Because if I don’t get a discharge I will go AWOL again and again till (sic) I get out of the Army.  (So pleace (sic) let me out.)  I will not stay in the Army.”  The applicant’s statement shows that he placed his signature on the document.

10.  On 20 August 1975, the Acting Commander, U.S. Army Personnel Control Facility, Headquarters Command, Fort Campbell 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 issuance of an undesirable discharge.

11.  On 26 August 1975, the Commander, Headquarters Command, Fort Campbell recommended approval of the applicant’s request for discharge from the U.S. Army for the good of the service, under the provisions of chapter 10 of Army Regulation 635-200 with an undesirable discharge.

12.  On 2 September 1975, the Commander, 101st Airborne Division (Air Assault), Fort Campbell approved the applicant’s request for discharge pursuant to chapter 10 of Army Regulation 635-200 and issuance of an Undesirable Discharge Certificate.  The commander also directed the immediate reduction of the applicant to the lowest enlisted grade.
13.  The applicant's military personnel records contain a copy of his DD Form 214 that shows he entered active duty this period on 11 January 1974 and was discharged on 8 October 1975, with a character of service of 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 court-martial, with Separation Program Designator (SPD) Code “KFS.”  This document shows that at the time of his discharge the applicant had completed 1 year, 2 months, and 21 days of net active service this period.  The DD Form 214 also shows that the applicant had 191 days of time lost under Title 10, U.S. Code, section 972, from 15 January 1975 to 24 July 1975.

14.  The applicant’s military personnel records are absent any evidence that he submitted a request for ordinary leave, request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal reasons.

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

16.  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.

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Enlisted Qualification Record, Officer Qualification Record, Personnel Qualification Record (PQR), Officer Record Brief (ORB), enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket (MPRJ), or any other document authorized for filing in the Official Military Personnel File (OMPF).  Section II (Preparation of
DD Form 214) contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 9c (Authority and Reason) state to enter the statutory and/or regulatory authority for separation plus the SPD.  Do not show a narrative reason for separation.

18.  Army Regulation 635-5-1 (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.

19.  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 of this 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.

20.  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.

21.  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.  The applicant contends, in effect, that his discharge should be upgraded to an honorable discharge because he was young and experiencing personal problems that caused him to go AWOL, Army officials approved his request for discharge after advising him that his discharge would be upgraded to an honorable discharge within 6 months, and he has matured since then and is a responsible citizen in his community.

2.  Records show the applicant was 22 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 23 years of age when his request for discharge for the good of the Service in lieu of trial by court-martial was reviewed by his chain of command and approved.  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 ordinary leave, request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal reasons.  There is also no evidence of record that Army officials denied such a request.

4  There is no U.S. Army regulation or policy that automatically changes the character of service of a former service member's discharge.  In addition, there is no evidence of record, and the applicant fails to provide sufficient evidence, that shows he was advised that his discharge under other than honorable conditions would be changed to an honorable discharge within 6 months of his discharge from the U.S. Army.  Therefore, the evidence of record fails to substantiate the applicant's claim that his discharge under other than honorable conditions would be changed to an honorable discharge 6 months after his discharge from the U.S. Army.

5.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the appropriate discharge certificate was furnished.

6.  The evidence of record shows that the applicant was AWOL from 15 January 1975 through 24 July 1975, which equates to 191 days (i.e., more than 6 months) time lost during the period of service under review.  In addition, the evidence of record shows the applicant completed less than 15 months of his 3-year enlistment commitment.  Thus, the evidence of record shows that the applicant’s record of service during the period of service under review 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.

7.  The applicant's contentions regarding his maturity and post-service conduct as a responsible citizen in his community were considered.  However, good post- service conduct alone is not a basis for upgrading a discharge.  

8.  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)                                         AR20080017292



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017292



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1