IN THE CASE OF:	  

		BOARD DATE:	  	  21 April 2009

		DOCKET NUMBER:  AR20090000977 


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 under other than honorable conditions discharge to a general discharge under honorable conditions.

2.  The applicant states, in effect, he understands the charges to be correct; however, he was 18 years old, going through a divorce with a child involved, and his intentions were to save his marriage.  He also states he was young and could not fully understand the situation, his actions were a mistake, and he is ashamed of what he did.  The applicant concludes by stating he would do whatever is necessary to repair the damage he has done.

3.  The applicant provides no additional documentary evidence.

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 personnel records show that he enlisted in the Regular Army and entered active duty for a period of 3 years on 9 July 1974.  Records show the applicant’s date of birth is __ August 1955.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 13B (Field Artillery Basic).

3.  The applicant’s military personnel records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 27 November 1974.  This document shows that nonjudicial punishment was imposed by the battery commander against the applicant for absenting himself without authority from his unit, to wit:  B Battery, 1st Battalion, 14th Field Artillery, 2nd Armored Division, located at Fort Hood, Texas, on or about 0700 hours, 18 November 1974, remaining so absent until on or about 0800 hours, 26 November 1974.  His punishment consisted of forfeiture of $79.00 a month for 1 month (suspended for 90 days), 14 days of extra duty, and 14 days of restriction to bay and chapel of choice (suspended for 90 days).

4.  The applicant’s military personnel records contain a DA Form 2627, dated 5 December 1974.  This document shows that nonjudicial punishment was imposed by the battery commander against the applicant for absenting himself from his unit without authority, to wit:  B Battery, 1st Battalion, 14th Field Artillery, 2nd Armored Division, located at Fort Hood, Texas, on or about 0700 hours, 2 December 1974, and remaining so absent until on or about 3 December 1974; and for absenting himself from his place of duty without authority, to wit:  extra duty located at Bravo Battery orderly room, on or about 1800 hours, 28 November 1974, and remaining so absent until on or about 1 December 1974.  His punishment consisted of forfeiture of $79.00 a month for 1 month, 14 days of extra duty, and 14 days of restriction to bay and chapel of choice.

5.  The applicant’s military personnel records contain a DA Form 4187 (Personnel Action), dated 20 January 1975, that shows the applicant’s duty status was changed from present for duty to absent without leave (AWOL), effective 0600 hours, 20 January 1975.

6.  The applicant’s military personnel records contain a DA Form 4187, dated 28 January 1975, that shows the applicant’s duty status was changed from AWOL to dropped from unit rolls (DFR), effective 28 January 1975.

7.  The applicant’s military personnel records contain a U.S. Department of Justice, Federal Bureau of Investigation, letter (FD-220a), dated 13 May 1975, subject:  [Applicant’s Name and Social Security Number] Deserter Fugitive, that shows the applicant was apprehended on 12 May 1975 and that the AWOL Apprehension Unit, Provost Marshal’s Office, Fort Leonard Wood, Missouri, was advised of the applicant’s apprehension on 12 May 1975.

8.  The applicant’s military personnel records contain a DA Form 2-1 (Personnel Qualification Record).

	a.  Section IV (Personal and Family Data), item 23 (Place of Birth and Citizenship), in pertinent part, shows the applicant’s spouse was born in Texas and item 24 (Number of Dependents) shows the applicant had two dependents (i.e., one adult and one child).

	b.  Item 21 (Time Lost - Section 972, Title 10, U.S. Code) shows the applicant was AWOL for 8 days from 18 November 1974 through 25 November 1974, AWOL for 3 days from 28 November 1974 through 30 November 1974, AWOL for 1 day on 2 December 1974, and AWOL for 109 days from 20 January 1975 through 8 May 1975.

9.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 15 May 1974, that shows the Commander, Company A, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, preferred charges against the applicant in that he did, on or about 20 January 1975, absent himself without authority from his organization, to wit:  Battery B, 1st Battalion, 14th Field Artillery, 2nd Armor Division, located at Fort Hood, Texas, and did remain so absent until on or about 9 May 1975.

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

11.  On 16 May 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 a discharge under other than honorable conditions if the request is approved, of the effects of the request for discharge, and the procedures and rights available to the applicant.

12.  The applicant signed his request for discharge which showed that he was making the request of 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, that he may be deprived of many or all Army benefits, that she may be ineligible for many or all benefits administered by the Veterans Administration, 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.  The applicant elected to submit statements in his own behalf and did submit statements in his own behalf.  The applicant’s request for discharge also shows he was provided counsel by Captain G____ A. S____, Judge Advocate General Corps.

13.  On 16 May 1975, the applicant completed two FLW Forms 554 (Reasons for Discharge for the Good of the Service) that he submitted along with his request for discharge.  The documents show the applicant stated, "I went AWOL because of marital problems I had after I joined the service.  My wife joined when I did.  From August until January she kept saying she would come back to me but finally filed for divorce.  She wouldn’t ever let me see my daughter alone.  I couldn’t take it so I went AWOL.  Finally, I turned myself in with the hopes that maybe I could cope with my problem.  Now that I returned and still had the same problem, I left again.  When I returned this time the divorce was final, I was behind with my child support, and still not able to see my little girl.  Even though I will have the same problem in civilian life, I feel that returning to my home and family, I can better withstand the events that have taken place."

14.  On 16 May 1975, the Commander, Company A, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, recommended approval of the applicant’s request for discharge from the Army under the provisions Army Regulation 635-200, chapter 10.  The company commander stated the applicant had demonstrated to his immediate supervisor that he was unwilling to adjust to military service and that any further disciplinary or rehabilitative action would be futile.  The company commander also stated that the applicant had been interviewed and, in view of his statements, demeanor, and attitude, he believed discharge of the applicant would be in the best interest of the service.  The company commander added that the applicant was pending trial by court-martial for AWOL on one occasion totaling 109 days and recommended the applicant be furnished an undesirable discharge.

15.  On 16 May 1975, the Commander, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, recommended approval of the applicant’s request for discharge from the Army under the provisions chapter 10 of Army Regulation 635-200.  The commander indicated he believed the applicant would never be a productive Soldier and recommended the applicant be furnished an undesirable discharge.

16.  On 22 May 1975, the Commanding General, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, reviewed and approved the applicant’s request for discharge for the good of the service.  The commanding general also directed the applicant be reduced to the grade of private (E-1) and furnished an Undesirable Discharge Certificate under the provisions of Army Regulation 635-200, chapter 10.

17.  The applicant's military personnel records contain a copy of his DD Form 214 (Report of Separation from Active Duty) that shows he entered this period of active duty on 9 July 1974 and was discharged on 23 May 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 the separation program designator (SPD) code "KFS."  This document also shows that at the time of his discharge the applicant had completed 6 months and 14 days of net active service.  The DD Form 214 shows that the applicant had 121 days time lost under Title 10, U.S. Code, section 972, from 18 November 1974 through 25 November 1974, 28 November 1974 through 30 November 1974, 2 December 1974, and 20 January 1975 through 8 May 1975.

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

19.  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.

20.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon 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.

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 a general discharge under honorable conditions because he was young, going through a divorce with a child involved and wanted to save his marriage, and he could not fully understand the situation or the consequences of his actions.

2.  The evidence of record shows the applicant was 19 years of age when he went AWOL on four separate occasions and also when he remained in an AWOL status for a period of 109 days that resulted in his being DFR of the Army as a deserter.  The evidence of record also shows that the applicant was 19 years of age when he submitted his request for discharge for the good of the service.  In this regard, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age and similar personal/family situation who successfully completed their military service during this period.

3.  There is no evidence that the applicant submitted a request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal/family reasons.  There is also no evidence of record that Army officials denied such a request during the period of service under review.

4.  The evidence of record confirms that the applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The evidence of record shows the applicant had a total of 121 days (i.e., more than 4 months) of time lost during the period of service under review.  In addition, the evidence of record shows the applicant completed less than 7 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.  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.

6.  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)                                         AR20090000977



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ABCMR Record of Proceedings (cont)                                         AR20090000977



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