IN THE CASE OF:	  

		BOARD DATE:	        16 June 2009

		DOCKET NUMBER:  AR20090006091 


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, upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he volunteered to serve his country when he was young in order to better his life.  He also states that during his military service his mother got sick, he was not able to hold himself together, he made mistakes, and he could not foresee the impact of his mistakes on his life until some 20 years later.  He adds he was a working, tax-paying citizen until his on-the-job injury.  The applicant concludes by stating he takes a lot of medicine and requests upgrade of his discharge in order to get benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 12 December 1973;
DD Form 257A (General Discharge Certificate), dated 12 December 1973;  VA Medical Center, Jackson, MS, letter, dated 19 June 2007; two G.V. (Sonny) Montgomery, VA Medical Center, Jackson, letters, dated 29 August 2007 and
10 October 2007; Natchez-Adams County Veterans Service Office, Natchez, MS, letter, dated 5 September 2007; VA Form 21-4138 (Statement in Support of Claim), dated 14 November 2007; and VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative), dated 14 November 2007.


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 personnel records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 16 March 1972 for a period of 6 years.  He was then discharged from the DEP on 26 June 1972 and he enlisted in the Regular Army (RA) on 27 June 1972 for a period of 3 years.  The applicant's records show his date of birth is 15 January 1954.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 36K (Field Wireman).

3.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).

   a.  Item 31 (Foreign Service) shows he served overseas in the U.S. Army, Europe (USAREUR) in Germany from 27 November 1972 to 22 April 1973.

   b.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS [Expiration Term of Service]) shows he was absent without leave (AWOL) for 216 days from 23 April 1973 through
24 November 1973.

4.  The applicant’s military personnel records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 12 February 1973, and a DA Form 2627-2 (Record of Appellate or Other Supplementary Actions Under Article 15, UCMJ), dated 21 February 1973.  These documents show that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 1530 hours,
12 February 1973, at Armstrong Barracks, Buedingen, Federal Republic of Germany, committing an assault upon a fellow Soldier by striking him in the face 

with his fist and thereby intentionally inflict bodily harm upon him, to wit:  a black eye, bruised left arm, and bloody nose and lip, in violation of Article 128, UCMJ.

a.  The punishment consisted of forfeiture of $50.00 per month for 1 month,
7 days of restriction, and 2 hours of extra duty per day.

   b.  On 12 February 1973, the applicant appealed the Article 15 based on the fact that the other Soldier assaulted him first.  The applicant provided his account of the incident, along with two witnesses to testify on his behalf that the other Soldier threw the first punch and that the applicant tried to avoid the fight.

   c.  On 21 February 1973, the battalion commander, denied the applicant’s appeal.  The punishment imposed remained the same.

5.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 28 November 1973, that shows the Commander, Company A, U.S. Army Personnel Control Facility (USAPCF), U.S. Army Training Center Engineer, Fort Leonard, MO, preferred charges against the applicant, in that he did, on or about 23 April 1973, without authority, absent himself from his organization, to wit:  Headquarters Battery, 3rd Battalion, 61st Field Artillery (Germany), and did remain so absent until on or about 25 November 1973.

6.  On 3 December 1973, 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.  The applicant’s request also 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) [now known as the Department of Veterans Affairs], 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.  The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge and the applicant elected to submit a statement in his own behalf.  The applicant’s request for discharge also shows he was provided counsel by Captain J_____ P. D_____ on 3 December 1973.



7.  The applicant submitted an undated statement that accompanied his request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial.  This document shows the applicant stated, “I, (applicant's name), believe that I should be discharged from the Army for the good of the service for the following reasons:  Sir:  Because I feel that I’ll never be able to adapt to the system.  I’m not able to take the pressor that are put in front of me.  I have problems which being in the Army only make them worste like my mother tells me she be worried about me consent while I’m in the Army.  My mind is weak.  I even found out that I’m all but total deaf in my right ear and a man without good hearing is really no good to the Army.  And besides I just don’t like it in the Army and just don’t believe I ever will truefully.  And I just marry which leave me with a wife to support and I can’t do it in the Stockade. [sic]"

8.  On 3 December 1973, the Commander, Company A, USAPCF, U.S. Army Training Center Engineer, Fort Leonard Wood, recommended approval of the applicant’s request for discharge from the Army, under the provisions of Army Regulation 635-200, chapter 10.  The commander stated the applicant demonstrated to his immediate supervisor that he is unwilling to adjust to military service and that any further disciplinary or rehabilitative action would be futile.  The commander noted that the applicant was interviewed and, in view of his statements, demeanor, and attitude, the commander believed discharge would be in the interest of the service.  The company commander recommended the applicant be issued an Undesirable Discharge Certificate.

9.  On 3 December 1973, the Commander, USAPCF, U.S. Army Training Center Engineer, Fort Leonard Wood, recommended approval of the applicant’s request for discharge from the Army, under the provisions of Army Regulation 635-200, chapter 10.  The battalion commander stated it was his opinion the applicant would never be a productive Solder, recommended approval of the separation action, and the applicant be furnished an Undesirable Discharge Certificate.

10.  On 5 December 1973, the Acting Commander, U.S. Army Training Center Engineer, Fort Leonard Wood, reviewed and approved the applicant’s request for discharge for the good of the service.  The acting commander also directed the applicant be reduced to the rank/grade of private (PV1)/E-1 and furnished an Undesirable Discharge Certificate, under the provisions of Army Regulation
635-200, chapter 10.

11.  The applicant's military personnel records contain his DD Form 214 that shows he entered active duty on 27 June 1972.  He was subsequently discharged on 12 December 1973, with service characterized as under 

conditions other than honorable in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service with Separation Program Number (SPN) 246, and issued an Undesirable Discharge Certificate.  The DD Form 214 also shows that at the time of the applicant's discharge, he had completed 10 months and 14 days of net active service this period; 3 months and 11 days of other service; 1 year, 1 month, and 25 days of total service; and
4 months and 26 days of foreign service.  Item 26a (Non-Pay Periods Time Lost), coupled with Item 30 (Remarks), shows the applicant had 216 days lost under Title 10, U.S. Code, section 972, from 23 April to 24 November 1973.

12.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

13.  The applicant’s military personnel records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), undated, that shows the applicant requested upgrade of his undesirable discharge stating that his mistakes were due to his age and lack of understanding.  Records show the applicant personally appeared before the Army Discharge Review Board (ADRB).  On 10 February 1981, the ADRB, after careful consideration of the applicant’s military records and all other available evidence, determined the applicant's discharge was proper, but not equitable.  The ADRB, after careful review of all the evidence available, by majority opinion, voted to grant partial relief in the form of a General Discharge.  The ADRB found that it could not characterize the applicant’s current period of service as fully honorable due to his extensive AWOL of 216 days.  The applicant was notified of the ADRB’s decision on 13 February 1981.

14.  The applicant's military personnel records contain his reissued DD Form  214 that shows he entered active duty on 27 June 1972 and was discharged on
12 December 1973, with service characterized as under honorable conditions in accordance with the provisions of Army Regulation 635-200, chapter 10.  The
DD Form 214 also shows the applicant had completed 10 months and 10 days of net active service this period; 3 months and 11 days of prior inactive service; and 4 months and 26 days of foreign service.  Item 29 (Dates of Time Lost During This Period) shows the applicant had 216 days of lost under Title 10, U.S. Code, section 972, from 23 April to 24 November 1973.  Item 18 (Remarks), in pertinent part, contains the statement “DISCHARGE UPGRADED ON 10 FEB 81; FOLLOWING APPLICATION OF 4 SEP 79.”





15.  In support of his application, the applicant provides the following documents.

   a.  DD Form 214 with an effective date of 12 December 1973 and DD Form 257A, dated 12 December 1973, that show, in pertinent part, the ADRB upgraded the applicant’s discharge to a general, under honorable conditions discharge on 10 February 1981.

   b.  VA Medical Center, Jackson, letter, dated 19 June 2007; two G.V. (Sonny) Montgomery, VA Medical Center, Jackson, letters, dated 29 August 2007 and
10 October 2007; Natchez-Adams County Veterans Service Office, Natchez, letter, dated 5 September 2007; VA Form 21-4138, dated 14 November 2007; and VA Form 21-22, dated 14 November 2007.  These records document the applicant’s efforts to obtain VA financial assistance, his appeal to the VA to reverse their eligibility decision pertaining to him, and the VA’s notice to the applicant to provide the required form and updated information to that agency.

16.  Army Regulation 635-200, in effect at the time, set 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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation, an undesirable discharge was normally considered appropriate.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge because he was young and made mistakes, he was a tax-paying citizen until his on-the-job injury, and upgrade of his discharge will allow him to obtain benefits from the VA.

2.  The evidence of record shows the applicant was 18 years of age when he enlisted in the RA and he was 19 years of age at the time of his acts of misconduct and offenses that led to his administrative discharge.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record confirms that 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, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.
Moreover, the evidence of record shows, as a matter of equity, the applicant's discharge was upgraded to a general, under honorable conditions discharge.

4.  The evidence of record shows that charges were preferred against the applicant, the punishment for which included a bad conduct or dishonorable discharge.  The evidence of record also shows the applicant had 216 days of time lost during the period of service under review.  In addition, records show that he completed less than 11 months of his 3-year enlistment contract.  The evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

5.  As a matter of information, the ABCMR does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for veteran’s benefits.

6.  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)                                         AR20090006091



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ABCMR Record of Proceedings (cont)                                         AR20090006091



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