IN THE CASE OF:	  

		BOARD DATE:	        27 January 2009

		DOCKET NUMBER:  AR20080017714 


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 an upgrade of his discharge.

2.  The applicant states that he was young and immature and that he got involved with alcohol and suffered from depression at the time.  He adds that when he returned home from Vietnam he sought help from his chain of command and the chaplain but was provided none, so he turned to alcohol.  He also adds that he knows he is responsible for his own actions and that it took him some time after his discharge to overcome his problems.

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 11 April 1972; a copy of his psychological evaluation report, dated 28 September 2007; and a copy of DA Form 20 (Enlisted Qualification Record), 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 records show he was born on 13 March 1948 and enlisted in the Regular Army at nearly 18 years of age for a period of 3 years on 1 February 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman).  He was honorably discharged on 26 February 1968 for the purpose of immediate reenlistment and reenlisted on 27 February 1968.  The highest rank/grade the applicant attained during his military service was sergeant/E-5.

3.  The applicant’s records show he served in Germany from 7 July 1966 to 16 June 1969 and in the Republic of Vietnam from 19 March 1970 to 23 February 1971.

4.  The applicant’s records further show he was awarded the National Defense Service Medal, the Army of Occupation Medal with "Berlin" Clasp, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Army Commendation Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His records do not show any acts of valor during his military service.

5.  The applicant’s record reveals an extensive history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 27 September 1969, for speeding and failure to maintain control of his vehicle, thus causing a traffic accident, on or about 24 August 1969.  His punishment consisted of a forfeiture of $40.00 pay for one month; 

	b.  on 9 January 1970, for being absent without leave (AWOL) during the period on or about 5 January 1970 through on or about 6 January 1970.  His punishment consisted of a forfeiture of $60.00 pay, 30 days of restriction, and 30 days of extra duty; 

	c.  on 13 March 1970, for being AWOL during the period on or about 18 February 1970 through on or about 12 March 1970.  His punishment consisted of a forfeiture of $100.00 pay per month for 2 months and reduction to corporal (CPL)/E-4; and

	d.  on 13 December 1971, for disobeying a lawful order from a superior commissioned officer on or about 1 December 1971.  His punishment consisted of a forfeiture of $40.00 pay and 7 days of restriction.
6.  On 14 October 1971, the applicant pled guilty at a special court-martial to one specification of losing a .45 caliber pistol of $49.50 value, through neglect, on or about 18 September 1971.  The Court sentenced him to a forfeiture of $100.00 pay per month for 3 months.  The sentence was adjudged on 14 October 1971 and approved on 19 October 1971.

7.  On 6 January 1972, the applicant departed his Fort Hood, Texas, unit in an AWOL status.  However, he surrendered to his unit on 23 January 1972.

8.  On 12 January 1972, the applicant’s immediate commander initiated a Certificate of Unsuitability for Enlistment/Reenlistment (Bar to Reenlistment Certificate) against the applicant citing his previous misconduct.  This bar was ultimately approved on 2 February 1972.

9.  On 28 January 1972, court-martial charges were preferred against the applicant for one specification of failing to go at the time prescribed to his appointed place of duty, on or about 24 December 1971; one specification of being derelict in the performance of his duties by willfully failing to secure a military radio, on or about 24 December 1971; and one specification of being AWOL during the period on or about 6 January 1972 until on or about 23 January 1972.  

10.  On 18 February 1972, the applicant departed his Fort Hood, Texas, unit in AWOL status.  He returned to his unit on 22 February 1972.

11.  On 23 February 1972, additional court-martial charges were preferred against the applicant for one specification of failing to go at the prescribed time to his appointed place of duty, on or about 8 February 1972, and one specification of being AWOL during the period on or about 18 February 1972 until on or about 22 February 1972.

12.  On 24 February 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

13.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

14.  On 25 February 1972, the applicant's immediate and intermediate commanders recommended approval of the applicant’s discharge and the issuance of an Undesirable Discharge Certificate.  Furthermore, on 28 February 1972, the applicant’s senior commander recommended the same.

15.  On 24 March 1972, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 11 April 1972, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of under conditions other than honorable.  This form further confirms the applicant had completed a total of 6 years and 25 days of creditable active military service and had 25 days of lost time.

16.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

17.  AR 635-200 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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

18.  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.
19.  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 that his discharge should be upgraded.

2.  The evidence of record shows that the applicant was nearly 18 years of age at the time he enlisted and over 22 years of age when he committed his multiple instances of AWOL.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in the applicant's records, and the applicant did not provide substantiating evidence that shows his repeated patterns of misconduct and indiscipline were the result of his age.

3.  The applicant's contention that his misconduct was a result of alcohol and/or depression is noted; however, it was found to be without merit.  The applicant's records show he had an extensive history of indiscipline that ranged from minor infractions of disobeying orders to the more serious misconduct of AWOL and losing a military pistol and a military radio, as evidenced by his multiple instances of nonjudicial punishments and a special court-martial.  Even if he encountered alcohol problems and/or depression, he had many legitimate avenues through which he could have received assistance or relief, had he chosen to use them.

4.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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.


																XXX
      _________________________
                 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)                                         AR20080017714



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ABCMR Record of Proceedings (cont)                                         AR20080017714



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