IN THE CASE OF:	  

		BOARD DATE:	       27 AUGUST 2009

		DOCKET NUMBER:  AR20090005594 


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.

2.  The applicant states that he had a 2-year old daughter who was born with cerebral palsy which eventually led to her death, and his stepfather died.  While he was granted emergency leave he felt that he needed more time, so he stayed home with his family.

3.  The applicant adds that he served a tour in Vietnam without incident, he has been married for 18 years and has 11 children (seven of which were adopted), and he worked until his disability kept him from working.  He now needs benefits from the Department of Veterans Affairs (VA).

4.  The applicant provides his DD Form 214 (Report of Separation From Active Duty) in support of his request.

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 records show that he enlisted in the Regular Army (RA) on 25 October 1966.  He completed his required training and he was awarded military occupational specialty (MOS) 11B (light weapons infantryman). He served in Vietnam from 6 February to 19 August 1969.

3.  Between 7 January 1967 and 4 March 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on five occasions for offenses including being absent without leave (AWOL), for failing to go at the time prescribed to his appointed place of duty, for disobeying a lawful command, and for assaulting a platoon sergeant by striking at him with an entrenching tool.

4.  The applicant was convicted by a special court-martial on 31 October 1968 for being AWOL from 1 May to 19 September 1968.

5.  The applicant again departed AWOL on 20 August 1969.

6.  On 11 February 1970, the applicant's mother wrote to the President of the United States concerning her son.  She stated that she was in poor health and her husband died.  As a result, the applicant was given emergency leave and was later given a compassionate reassignment to a local unit.  However, a financial problem kept him from commuting from home to his new unit and the new company commander would not help her get her son discharged.

7.  On 17 March 1970, a response was sent to the applicant's mother informing her that no action could be taken on the applicant's separation until he turned himself in to military authorities.

8.  The applicant was returned to military control on 22 May 1974.  On 21 June 1974, the applicant was given an undesirable discharge under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, by reason of discharge for the good of the service - in lieu of court-martial.  He had 2 years,
4 months, and 23 days of creditable service with 1,922 days of lost time due to AWOL and confinement.

9.  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, 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 would normally be furnished an individual who was discharged for the good of the Service.

10.  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.

11.  On 13 June 1975, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.

DISCUSSION AND CONCLUSIONS:

1.  While the letter from the applicant's mother shows that she was ill and the applicant's father died, according to the applicant's mother the Army gave the applicant emergency leave and then a compassionate reassignment to accommodate his hardship situation.

2.  There is no evidence that the applicant had a child who had cerebral palsy.  However, even if he had, it would not form the basis for granting his request.  The Army has various provisions to assist Soldiers having hardship situations, two of which were used in the applicant's situation (emergency leave and compassionate reassignment for his father's death and mother's illness).  The appropriate form of assistance would have been provided to the applicant for a child suffering from a grave medical condition.

3.  Since the applicant was provided more than adequate means to deal with his mother's illness and father's death, there is no evident reason for his extended AWOL time. 

4.  The applicant accepted NJP on five occasions, he was convicted by a special court-martial, and he had 1,922 days of lost time.  Such serious, repeated misconduct certainly warranted an undesirable discharge.
5.  Additionally, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  As such, there is no basis for granting the applicant's requested relief.

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.



      ___________XXX______________
               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)                                         AR20090005594



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ABCMR Record of Proceedings (cont)                                         AR20090005594



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