IN THE CASE OF:	  

		BOARD DATE:	       23 APRIL 2009

		DOCKET NUMBER:  AR20090000937 


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 discharge characterized as under conditions other than honorable be upgraded.

2.  The applicant states he believes that he was a good Soldier, but was going through a lot of problems with his wife.  He maintains that his wife left him for another man while she was receiving most of his money.  He explains that he went through his chain of command to have his allotment changed, but it took too long.  He offers that he left the unit so he could stop his wife from receiving his money which was a mistake.  The applicant states he was young and made a hasty mistake that he now regrets.

3.  The applicant provides a letter of commendation with the battalion commander's endorsement.

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 record shows he originally enlisted in the Regular Army on 24 December 1969 and was honorably discharged on 16 March 1970 for an erroneous enlistment.

3.  His record further shows that he enlisted in the Regular Army and entered active duty again on 3 March 1972.  He was 20 years old at the time of enlistment.  He was trained in, awarded, and served in military occupational specialty 11B (Light Weapons Infantryman).

4.  On 15 June 1972, nonjudicial punishment was imposed against the applicant for being absent without authority from his place of duty.  His punishment consisted of forfeiture of $40.00 per month for 1 month.

5.  The applicant provided a letter of commendation, dated 21 July 1972, from the Provost Marshal commending him on his participation in the Special Military Police Operation conducted at Fort Campbell, Kentucky, on 21 July 1972.  He also provided an endorsement to the letter of commendation from the battalion commander, dated 31 July 1972.

6.  On 22 May 1973, the applicant was convicted by a special court-martial for three specifications of being absent without leave (AWOL) from his unit on three separate occasions:  5 February 1973 to 26 February 1973, 6 March 1973 to 12 March 1973, and 20 March 1973 to 21 March 1973.  His punishment consisted of hard labor without confinement for 30 days, forfeiture of $75.00 pay per month for 2 months, and reduction to the grade of E-1.

7.  On 4 September 1973, charges were preferred against the applicant for being AWOL from 5 July 1973 to 4 September 1973.

8.  On 6 September 1973, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

9.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he may be 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 Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement on his behalf.

10.  In the applicant’s statement he said that he wanted out of the Army because he did not like the Army and could not adjust to it.  He reiterated that he understood he might receive an Undesirable Discharge and lose his benefits.

11.  On 12 September 1973, the applicant underwent a physical examination and was medically cleared for separation.

12.  On 26 September 1973, the captain in command of Company C, 1st Battalion, 506th Infantry, 101st Airborne Division, Fort Campbell, Kentucky, recommended disapproval of the applicant’s request for discharge for the good of the service.  He provided a synopsis of the applicant's family situation, his duty performance, and disciplinary infractions.  He said that in his opinion an administrative discharge of any type was not justified.  He offered that the applicant was capable of performing his military duties, but he no longer had a desire to serve.  He opined that if the applicant was discharged from the service, only a punitive discharge would be appropriate.

13.  On 3 October 1973, the lieutenant colonel in command of the 1st Battalion, 506th Infantry, 101st Airborne Division, Fort Campbell, Kentucky, recommended disapproval of the discharge action with immediate action to complete a special court-martial.

14.  On 3 October 1973, the colonel in command of the 2nd Brigade, 101st Airborne Division, Fort Campbell, Kentucky, also recommended disapproval of the discharge action.

15.  On 25 October 1973, the Commanding General, , 101st Airborne Division, Fort Campbell, Kentucky, approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 with an Undesirable Discharge Certificate.

16.  The applicant's DD Form 214 shows that he was discharged under conditions other than honorable on 5 November 1973.  The applicant completed 4 months and 29 days of creditable service with 96 days lost due to AWOL during this period of enlistment.

17.  On 25 May 1984, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  The ADRB denied his appeal on 5 December 1984 citing that the board determined he was properly and equitably discharged.
18.  Army Regulation 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, 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.  At the time, an undesirable discharge was normally considered appropriate.

19.  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.

20.  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 argues that his discharge should be upgraded because he was going through difficult times with his wife and made hasty decisions based on his age.

2.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.

3.  The records show that the applicant was 20 years old at the time of his offenses.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service during difficult times.  Therefore, the contention by the applicant that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

4.  The applicant’s record of service included one Article 15, conviction by a special court-martial, and 96 days of AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, he is not entitled to a discharge upgrade.

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.



      ___________XX______________
                 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)                                         AR20090000937



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ABCMR Record of Proceedings (cont)                                         AR20090000937



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