IN THE CASE OF:	  

		BOARD DATE:	  	        16 July 2009

		DOCKET NUMBER:  AR20090004154 


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, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he served honorably in Vietnam.  He was reassigned to Fort Campbell, Kentucky, and subsequently put on leave pending reassignment to Germany.  The applicant also states that the personnel officer advised him he would send port call instructions to him, but he failed to provide them to the applicant.  The applicant adds he never knew he had any recourse concerning his discharge and requests mercy from the Board.

3.  The applicant provides, in support of his application, a copy of a DD Form 4 (Enlistment Record - Armed Forces of the United States), dated 29 May 1967, and an Army Commendation Medal Citation, undated.

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 (RA) and entered active duty for a period of 3 years on 29 May 1967.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty
57H (Cargo Specialist).  The applicant attained the rank of specialist five (E-5) and was discharged on 28 May 1970 for the purpose of immediate reenlistment in the RA on 29 May 1970.  There is no evidence he served in the Republic of Vietnam (he separated on temporary records).  However, the applicant served in the U.S. Army Europe in Germany from April 1969 to March 1972 and was awarded the Army Commendation Medal for meritorious service.

3.  On 19 October 1972, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL).  His punishment consisted of a forfeiture of $100.00 pay for 1 month (suspended for a period of 60 days) and 14 days of extra duty.  On
24 October 1972, the suspended portion of the punishment was vacated by the commander.

4.  A DD Form 458 (Charge Sheet), dated 9 January 1975, shows an acting Assistant Adjutant, U.S. Army Personnel Control Facility, U.S. Army Signal Center, Fort Gordon, Georgia, preferred charges against the applicant for being AWOL from his unit (i.e., the 21st Adjutant General Replacement Detachment in Germany) from 24 May 1973 to 14 December 1974.

5.  On 10 January 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 request for discharge states he had not been subject to coercion with respect to his request for discharge.  It states 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 he may be ineligible for many or all benefits administered by the Veterans Administration (VA), 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.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge:

   a.  The applicant submitted a statement, dated 10 January 1975, that shows, in pertinent part, the applicant stated "I have a bad attitude towards the Army.  I can not be rehabilitated.  I will accept a U.D. [Undesirable Discharge].  I waive the 72 h[ou]r waiting period."
   
   b.  The immediate and intermediate commanders recommended approval of the applicant’s request for discharge.

6.  On 3 March 1975, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  The commander also directed the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

7.  The applicant’s DD Form 214 shows he was discharged on 17 March 1975 in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service and issued an Undesirable Discharge Certificate.  At the time he had completed 6 years, 2 months, and 20 days of net active service.  The applicant also had 569 days of lost time.

8.  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.

9.  In support of his application, the applicant provides a copy of a DD Form
4 that shows he enlisted in the RA for a period of 3 years on 29 May 1967.  The applicant also provides a copy of Headquarters, United States Theater Army Support Command, Europe, Army Commendation Medal Citation, that shows he was cited for award of the Army Commendation Medal for meritorious service while serving in the Service Section, 579th Ordnance Company, U.S. Army Advanced Weapons Support Command, from April 1969 to March 1972.

10.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate was normally considered appropriate.

12.  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.

13.  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, his undesirable discharge should be upgraded to an honorable discharge because he was placed on leave pending reassignment to Germany; however, he was never provided port call instructions in order for him to travel to Germany.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to support his claim that he was never provided port call instructions in order for him to travel to Germany.  In this regard, records show the applicant had completed more than 5 years of satisfactory active duty service, which included completion of a previous overseas tour of duty in Europe, when he went AWOL in lieu of reporting for overseas movement to Germany in May 1973. Therefore, it is reasonable to conclude that the applicant was aware of the reassignment process and had the capacity to inquire about his non-receipt of port call instructions. 

3.  The applicant’s 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 was voluntary, administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  In addition, the character of the discharge is appropriate for the applicant's offense.  Therefore, considering all the facts of the case, the type of discharge and character of service directed were appropriate.

4.  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.  Therefore, in view of all 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 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)                                         AR20090004154



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ABCMR Record of Proceedings (cont)                                         AR20090004154



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