IN THE CASE OF:	  

		BOARD DATE:	      24 March 2009

		DOCKET NUMBER:  AR20080018405 


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 reconsideration of his earlier request for reconsideration of his request to upgrade his undesirable discharge, to include the reason for his discharge, which was a new issue considered by the previous Board.

2.  The applicant states, in effect, that he joined the U.S. Army on 14 October 1970 in Kansas City, Missouri.  He did so in order to obtain an assignment to the Federal Republic of Germany vice going to the Republic of Vietnam.  His service in Germany was alright, except that he got into minor trouble a few times.  He received a summary court-martial and did his time.  Once, while downtown in a local bar, he got into it with two military policemen.  He was hit twice in the groin and over the left eye.  He received eight stitches and has since been unable to have any children.  His military personnel and medical records do not contain any account of this incident.  The applicant further states that he always performed to the best of his ability, regardless of the mission.  He was a wheeled vehicle mechanic but was assigned duty as a cook for at least 6 months.  He contends that there is no record of him performing duties as a cook.  While on emergency leave he found out that his wife was divorcing him because of financial problems.  He did not know she was not receiving her allotment checks.  The Army never told him that his support checks were not being sent to his wife.  He was returned to Germany when he was arrested and jailed.  Then the military police took him to Fort Leavenworth, Kansas, and he was charged with being absent without leave (AWOL).  

3.  The applicant contends that his rights were violated by the Army because the Army did not tell him that his wife divorced him on 2 July 1973.  He further contends that he requested a hardship discharge but was instead recommended for an administrative discharge for unfitness.  This was unfair.  The Army knew he was having family problems.  If he had received an "early out" and obtained a job things would have been different.  His family took priority over the Army.  He was stressed and badly worried.  He could not think straight.  He was young, his wife was young, and they were apart after getting married.  It was hard on his wife who also had a child.  When he was in the stockade, the officer lied to him.  He contends that the waivers he signed were fraudulent because he was coerced into signing them based on the understanding that he would receive a general discharge and that it would be upgraded in 6 months.  He also states that he did not receive due process because his military records were not sent from Germany until September 1974.  

4.  The applicant’s argument is that his discharge is inequitable, unfair, and too severe for the offenses committed.  He argues that the discharge was improper because he did not receive the legal advice he was authorized.  He argues that he was too young [and immature].  He argues that the command did not give enough weight to his previous good record, and only used [incomplete] temporary records.  He argues that family [problems] impaired his ability to serve.  

5.  He is asking for an upgrade of his discharge to include changing the reason for his discharge.  He is an alcoholic with 20 years of sobriety.  He helps other alcoholics with their problems.  He has been a productive citizen of the United States for a long time.  If he could reenlist now at age 57, he would do so in order to clear his record.

6.  The applicant provides, in support of his application, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), three letters of support, orders and other documents associated with his administrative discharge proceedings, a Department of Veterans Affairs (VA) letter in response to his VA Claim, and paragraph 2-9b of Army Regulation 135-178. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080002771, on 24 June 2008.


2.  Also incorporated herein are the military records which were summarized in the original consideration of his request to upgrade his discharge by the ABCMR in Docket Number AC93-11075, on 26 April 1995, wherein the Board carefully considered the applicant's entire service record as well as the evidence he submitted.  His request to upgrade the discharge was denied.

3.  The three letters of support and arguments presented by the applicant are new evidence that requires Board consideration of Docket Number AR20080002771.

4.  The applicant was born on 7 August 1951 and was 19 years of age when he enlisted in the Regular Army on 15 October 1970. 

5.  On 26 March 1971, the applicant was assigned for duty as a wheeled vehicle mechanic with the 3rd Battalion, 61st Field Artillery, in the Federal Republic of Germany.  

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) shows award of the National Defense Service Medal.  Item 29 (Qualification in Arms) shows that he qualified as a marksman with the .45 caliber pistol and as a sharpshooter with the M-16 rifle.

7.  Item 44 (Time Lost) of the applicant's DA Form 20 shows he was AWOL on four different occasions between 1 June and 15 October 1973, totaling 64 days.

8.  On 15 October 1973, the applicant was discharged, with an undesirable, under other than honorable conditions discharge, under the provisions of Army Regulation 635-200, chapter 13, for unfitness.

9.  On 22 September 2008, the applicant's sister and her husband wrote a letter of support.  They wrote that he was arrested just prior to his flight back to Germany in 1973.  In 1988, they took the applicant to receive alcoholic treatment at the House of Hope in Grove, Oklahoma.  Since his treatment, he has changed dramatically.  However, he still has bad memories of his Army service.  The applicant is a very good man and tries his best to help anyone.  He is a very generous person when he has it to give.  He would do anything to help others.  He cares and respects others.  The applicant needs his discharge changed to give him peace of mind.  It has been hard on him since his discharge.  He always talks about his Army life and the troubles he had.  The authors think that he was "done unfair."

10.  On 6 October 2008, the applicant's former wife wrote a letter of support.  She stated that she was married to him in September 1972.  In July 1973, she divorced him because he was an alcoholic who was very mean to her.   He would not let her go to Germany with him and he did not provide any financial support.  She also states that the applicant went AWOL in an effort to save their marriage and to bond with their son.  The applicant always thought he knew best, making them incompatible.     

11.  On 11 November 2008, the applicant's employer wrote a letter of support.  He states that he has known the applicant for over 20 years and he is a good worker.  He would do whatever he was asked to do.  He had no problems with the applicant.

12.  The Board determined in its original, 1995, case that the applicant had not submitted his application within the required time.  Furthermore, the Board did not find sufficient justification to conclude that it would be in the interest of justice to grant the requested relief or to excuse the failure to file within the time prescribed by law.

13.  On 24 June 2008, the Board, after carefully reviewing all of the applicant's records and considering his argument, determined that the applicant had been properly and equitably discharged.  With regard to his new issues, the Board determined that the applicant's records should be corrected to show his overseas service in Germany, but not to change the reason for his discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1) of the regulation provided, in pertinent part, for the separation of enlisted personnel for unfitness.  Individuals separated by reason of unfitness were normally furnished with an Undesirable Discharge Certificate.

15.  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.  

16.  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 was inequitable and unfair by being too severe for the offenses committed.  He further argues that the command did not give enough weight to his previous good record; that family problems impaired his ability to serve; that the discharge was improper because he did not receive the legal advice he was authorized; that his discharge would be upgraded after 6 months; and that he was young and immature. 

2.  The Board proceedings, dated 24 June 2008, clearly show that careful consideration was given to the applicant's argument and to his entire service record to include his awards.  

3.  Notwithstanding the applicant's assertion that it would be unjust not to upgrade his discharge, there is no available evidence to show that his reported family problems caused any mitigating circumstances or that his AWOL was a reasonable solution to them.  

4.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 19 years of age when he enlisted.  He had satisfactorily completed his training and was about 4 months shy of 20 years of age when he was assigned duty in the Federal Republic of Germany.  He served more than 2 years and 7 months before his first recorded misconduct, at age 21 years and 9 months, on 1 June 1973.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

5.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

6.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

7.  Furthermore, the applicant has not provided any convincing evidence showing that the reason for his discharge is in error or unjust.

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 the aforementioned requirement.

9.  In view of the foregoing, there is no basis for granting the applicant's request.
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 to amend the decision of the ABCMR set forth in Docket Number AR20080002771, dated 24 June 2008.




      _______ _  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)                                         AR20080018405



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ABCMR Record of Proceedings (cont)                                         AR20080018405



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