IN THE CASE OF:	

		BOARD DATE:	21 July 2009  

		DOCKET NUMBER:  AR20090005965 


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 honorable.

2.  The applicant states he was treated unfairly when his unit first sergeant, who reminded him of “Archie Bunker,” accused him of being AWOL (absent without leave) when in fact he was not AWOL.  He states he was supposed to be the best man at a friend’s wedding and when asked if he could be gone over the weekend he was told by his first sergeant that as long as he (the applicant) did not have duty it would be alright.

3.  He states he checked the duty roster and when his name did not appear he left for the weekend.  The applicant states when he returned to formation on the following Monday the unit first sergeant told him to get out of the formation, that he was AWOL.  The applicant states when he looked again at the duty roster he discovered that someone had written his name on the roster.  

4.  The applicant states he contacted the Inspector General (IG) who said “who do you think they are going to believe you or the 1st SGT.”  So the IG recommended that he (the applicant) go AWOL and that way they would offer him a transfer.  He states he returned to formation the following day and when the first sergeant cursed him and demanded that he leave the applicant states he went home, that he was forced to go AWOL.

5.  The applicant maintains he has been treated unfairly for 30 years and that the unit first sergeant ruined his future with the Army.  He asks why he would mess up his own future when he only had a few months remaining on his enlistment before he left.

6.  The applicant provides a copy of an unsigned DD Form 293 (Application      for Review of Discharge from the Armed Forces of the United States), dated       2 February 2009, a DA Form 2166-4 (Enlisted Efficiency Report) for the period January 1974 through August 1974, his DD Form 214 (Report of Separation from Active Duty), and a self-authored statement 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.  Records available to the Board indicate the applicant enlisted for 3 years and entered active duty as a Regular Army (RA) Soldier on 21 July 1972.  His scheduled separation date was established as 20 July 1975.  He successfully completed training and he was awarded military occupational specialty (MOS) 36K (field wireman).  In December 1972 he was assigned to an infantry unit in Korea.  By July 1973 he had been advanced to pay grade E-3.

3.  In January 1974 the applicant was reassigned to a field artillery unit at Fort Sill, Oklahoma.

4.  According to an entry on the applicant’s DD Form 214 he had periods of lost time between 24 January 1974 to 27 January 1974 (Thursday through Sunday) and on 4 and 5 March 1974 (Monday and Tuesday).  There is no indication in the available files that the applicant was punished for these lost time periods.  

5.  On 17 March 1974 the applicant departed AWOL and returned to military control on 8 April 1974.  He was convicted by a special court-martial in May 1974 for this period of AWOL.  His sentence included reduction to pay grade E-1 and confinement at hard labor for 45 days, which was suspended.  

6.  In spite of the periods of lost time and conviction by a special court-martial, the DA Form 2166-4 provided by the applicant in support of his application notes he received a complimentary evaluation for the period January 1974 through August 1974.  The report evaluated the applicant’s performance as a field wireman at Fort Sill and noted that in five of the six evaluated categories he was rated as “AA” (above average).  In the final category (duty performance) he was rated “E” (excellent).  The report recommended the applicant be promoted with his contemporaries.  The applicant was rated by a master sergeant, the battalion’s communication chief.

7.  The applicant had two additional periods of lost time (26 - 29 September 1974 and 18 - 20 October 1974), as reflected on his DD Form 214.  There is no indication in the available records that he was punished for these lost time periods.

8.  On 5 November 1974 the applicant again departed AWOL.  He was dropped from the roles (DFR) of the Army on 20 November 1974 and subsequently apprehended by civilian authorities in Tennessee and returned to military control on 1 April 1975.

9.  A DD Form 458 (Charge Sheet), dated 10 April 1975, shows the applicant was charged with being AWOL from 5 November 1974 through 1 April 1975.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He elected not to submit a statement in his own behalf and he was placed in an excess leave status effective 18 April 1975.

10.  The appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Undesirable Discharge Certificate be issued.  On 19 May 1972 the discharge was executed.  He was credited with 2 years and 4 months of active Federal service with more than 180 days of lost time.

11.  In 1982 the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

14.  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 he was forced to go AWOL after being falsely accused of being AWOL by his unit first sergeant following a weekend absence.  However, the evidence of record does not support that argument.  The applicant’s record shows he had multiple periods of AWOL following his arrival at Fort Sill and was in fact convicted by a special court-martial following one of the periods of AWOL.  There is no evidence in available records, or provided by the applicant, that show he was treated unfairly.  

2.  The applicant also questioned why he would jeopardize his career so close to the end of his enlistment.  However, the evidence available to the Board 
indicates the applicant’s enlistment contract was scheduled to expire in July 1975 and yet he began his first period of AWOL in January 1974, more than a year prior to the expiration of his enlistment contract.

3.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  Had there been extenuating circumstances for his absence he could have pled those circumstances at a court-martial.  Rather, the applicant elected to be discharged rather than face a court-martial.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and there is no indication of procedural errors that would have jeopardized his rights.

4.  The applicant has not provided a compelling argument which would justify upgrading the character of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

5.  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)                                         AR20090005965



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005965



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1