IN THE CASE OF:	  

		BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090005974 


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, his undesirable discharge (UD) be upgraded.

2.  The applicant states, in effect, that he had good credit before going to Vietnam and that was no longer the fact when he came home.  He sent his wife most of his check and she went through that money and her allotment each month.  He had more bills than he could pay.  When the Army came to pick him up, one of the officers stated that he was going to jail and not coming back, so he did the only thing he could, he ran.

3.  In support of his application, the applicant provides copies of a statement from military defense counsel, the approvals of his request for discharge for the good of the service, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and a letter from the Department of Defense Discharge Review Program (Special).

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 he was inducted into the Army of the United States on 20 March 1969.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 71P, flight operations coordinator.  He served in Vietnam from 6 October 1969 to 5 October 1970.  He was honorably discharged from active duty in pay grade E-4 on 14 February 1970 for the purpose of enlistment in Regular Army.

3.  The applicant enlisted in the Regular Army in pay grade E-4 on 15 February 1970 for 3 years.  He served in MOS 71P.  He was promoted to pay grade E-5 on 7 July 1970.  He was honorably discharged from active duty for the purpose of immediate reenlistment on 18 February 1971.  He reenlisted on 19 February 1971 for 6 years.

4.  On 10 April 1972, the applicant's company commander initiated a bar to reenlistment against the applicant.  The company commander stated that the applicant was a substandard Soldier who should be barred from enlistment/
reenlistment in the service.  The applicant had a record of falling below the standards for his grade in both conduct and efficiency.  His major problem was excessive indebtedness and his failure to pay just debts even after being counseled.  His duty section leader also counseled him on numerous occasions and arranged a comprehensive plan to consolidate all of his debts.  The applicant had made no apparent attempt to follow that plan.  The company commander also stated that on at least five occasions the applicant negotiated checks which he knew to be in excess of the amount in his account.  That irresponsible behavior had an effect on his performance of duty in that each time a letter or call was received he had to be taken from his place of duty to discuss the matter.  That had caused a definite reduction in his efficiency.

5.  On the same day, the applicant's battalion-level commander recommended approval of the bar to reenlistment.  The bar was approved on 12 May 1972.

6.  On 30 June 1972, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for absenting himself from his unit on 23 June 1972.  The punishment imposed was a forfeiture of $50.00 pay per month for 1 month and extra duty for 1 week.  He did not appeal the punishment.

7.  The applicant was reported AWOL on 30 August 1972 and dropped from the rolls of his organization on 30 September 1972.  He returned to military control on 21 June 1973.

8.  The applicant submits a copy of an undated statement from his military defense counsel.  Counsel stated that the applicant did not want the stigma of a possible court-martial conviction on his record and had decided to request discharge for the good of the service.  Counsel also stated that the applicant went AWOL because of personal and financial problems.  When the applicant returned from Vietnam, he found himself frozen into a non-promotable status because of some indebtedness.  The applicant was also getting a divorce from his first wife and in desperation from the combination of the problems, he departed AWOL.  Counsel recommended that a General Discharge Certificate be considered for the applicant.

9.  The applicant also submits of a copy of memorandum, dated 23 July 1973, wherein the battalion-level commander recommended approval of the applicant's request for discharge for the good of service.  The commander stated that the applicant had a lengthy AWOL and only wanted out of the Army regardless of the type of discharge.  The commander recommended the applicant be given a UD.

10.  The applicant further submits an action, dated 3 August 1973, showing the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1.

11.  All of the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records show he was reduced to pay grade E-1 based on the approval of his separation under chapter 10 with a UD.

12.  There is no evidence the applicant requested a hardship discharge based on his personal and financial problems during his period of service.

13.  The applicant was discharged on 29 August 1973 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under other than honorable conditions.  He was credited with 2 years, 8 months, and 22 days of net active service and 296 days of lost time due to AWOL.


14.  In a letter, dated 11 August 1977, the Department of Defense Discharge Review Program (Special) advised the applicant that he was not eligible for a review of his discharge under that special program.  He was also advised that he could apply for upgrading of his discharge under regular procedures which would provide him a full and fair consideration of his case.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for 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.  At the time, a UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

17.  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.

18.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows the applicant departed AWOL on 30 August 1972 and returned to military control on 21 June 1973.  Upon his return to military control, 

he advised his military defense counsel that he did not want the stigma of a possible court-martial conviction on his record and had decided to request a discharge for the good of the service.  The applicant's battalion-level commander stated that the applicant only wanted out of the Army regardless of the type of discharge and he recommended the applicant be given a UD.

3.  The applicant has submitted no evidence to mitigate his offense or to show that he was denied any assistance with any problems he was having from his chain of command.  The evidence shows he had been counseled on numerous occasions concerning his excessive indebtedness, given a comprehensive plan by his duty section leader to consolidate all of his debts, and had made no attempt to follow the plan.

4.  The applicant also has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  In the action initiated barring the applicant from reenlistment, his company commander stated that the applicant had a record of falling below the standards for his grade in both conduct and efficiency.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge for his period of service from 15 February 1970 to 29 August 1973.

5.  In the absence of evidence to the contrary, it appears the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  In view 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)                                         AR20090005974



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ABCMR Record of Proceedings (cont)                                         AR20090005974



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