DOCKET NUMBER:  AR20090003055 


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 undesirable discharge be upgraded and that his rank of sergeant, E-5 be restored.  

2.  The applicant states that he was assigned to an experimental babysitting unit at Fort Lewis, WA in 1973.  He states that this was not the military that he had previously served in.  He did not know that the U.S. Army was trying to develop experimental units made up of 17-year-olds until he read General Colin Powell's book released in 2001.  The applicant mentioned an excerpt from General Powell's book in which he stated that the collection of so many babies in one or more unit was a total failure because of the inability to control them.

3.  The applicant provides a personal statement; a letter from the Department of Veterans Affairs (VA), dated 13 January 2004; a letter from the VA, dated 6 February 2004; and two Enlisted Efficiency Reports for the periods ending November 1973 and November 1971 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 enlisted in the Regular Army on 20 November 1968.  He completed the required training and was awarded military occupational specialty 13A (field artillery basic).  He was honorably discharged on 20 July 1969 for immediate reenlistment.  

3.  He reenlisted in the Regular Army on 21 July 1969 and was honorably discharged on 28 January 1972 to attend school.  

4.  The applicant enlisted in the Regular Army again on 18 December 1972.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Battery A, 2nd Battalion, 4th Field Artillery, 9th Infantry Division at Fort Lewis, WA in January 1973.  

5.  He was promoted to the rank of sergeant, E-5 on 1 September 1973.

6.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) on his DA Form 20 shows he was absent without leave (AWOL) from 14 January to 23 May 1974.  This period of lost time is recorded on his DD Form 214 (Report of Separation from Active Duty).  

7.  Headquarters, U.S. Army Training Center and Fort Ord, Special Orders Number 226, dated 14 August 1974, reduced the applicant to the rank of private, E-1 (PV1) by reason of misconduct effective 10 August 1974.  

8.  The applicant’s discharge packet is not available.  However, his DD Form 214 shows he was discharged on 20 August 1974 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with the issuance of an Undesirable Discharge Certificate.  He completed 1 year, 3 months, and 
23 days of creditable active service during the period covered by this DD Form 214 with 129 days of lost time due to being AWOL.  

9.  Item 6a (Grade, Rate or Rank) and item 6b (Pay Grade) on the applicant’s DD Form 214 shows his rank and pay grade as “PV1” and “E1.”  His date of rank is shown as 10 August 1974.



10.  The applicant provided a personal statement in support of his claim.  He stated that he was diagnosed with Post Traumatic Stress Disorder (PTSD) in 1972 and again in 1975 by the VA.  He stated that this may have contributed to his inability to cope with the Army in 1973 at Fort Lewis.  He also stated that he needed the structure that he knew before he was with Battery A, 2nd Battalion, 4th Field Artillery, 9th Infantry Division.  Since the Uniform Code of Military Justice (UCMJ) could not be enforced, the 17-year-old volunteer experiment was the demise of himself and the Army's "brat patrol."  He continued by stating that his documents from the VA confirm his diagnosis of PTSD and he also had
five procedures performed on his heart including a 5-way bypass.  He also provided his performance reports which show he performed flawlessly until he joined the 9th Division.  

11.  In a 13 January 2004 letter, the VA indicated the applicant was granted a service-connected disability rating at 100 percent for PTSD, 40 percent for diabetes mellitus, 60 percent for arteriosclerotic heart disease, and 10 percent for hypertension. 

12.  In a 6 February 2004, the VA indicated the applicant was granted a
service-connected disability rating at 100 percent for arteriosclerotic heart disease.  

13.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

14.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

15.  Army Regulation 635-200, paragraph 1-13 states that when a Soldier is to be separated under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

16.  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.  

17.  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.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to grant relief in this case.  

2.  In the absence of the applicant's chapter 10 discharge proceedings, the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, is presumed to have been administratively correct and in conformance with applicable regulations.  

3.  Although the specific charges are not available, it is presumed the separation authority appropriately directed the issuance of an Undesirable Discharge Certificate based on the applicant's overall record during the current enlistment.

4.  The applicant’s service records show 129 days of lost time based on his period of AWOL.  Based on this record of lost time, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  

5.  There is no evidence available which shows the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to either a general or fully honorable.



6.  The applicant was promoted to sergeant on 18 December 1972.  It appears that during the discharge process, the separation authority directed that the applicant be issued an Undesirable and that he be reduced to the lowest enlisted grade, PV1.  Therefore, there is no basis for restoring his rank to sergeant, E-5.

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)                                         AR20090003055



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003055



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1