IN THE CASE OF:	  

		BOARD DATE:	  14 July 2009

		DOCKET NUMBER:  AR20090006854 


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 that his discharge characterized as under conditions other than honorable be upgraded to honorable.

2.  The applicant provides a brief synopsis of his military history.  He states, in effect, that after completion of basic training and advanced individual training he served two tours overseas; one tour in Korea and one in Vietnam.   The applicant says he was assigned to Fort Knox, Kentucky, upon his return to the United States.  While at Fort Knox, he got married and he and his wife were expecting their first child when he was placed on assignment instructions to Germany.  He offers that the assignment to Germany was based on his first sergeant's (1SG) dislike of him and the 1SG's vow to get him out of his company.  The applicant states that when he got ready to leave for Germany, his wife started crying and begged him not to leave.  He adds that he made the wrong decision and did not go on the assignment.  The applicant maintains that after the birth of his child, he was afraid to turn himself in for fear of being sent to the stockade.

3.  The applicant provides his self-authored statement in support of his application.

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 record shows he enlisted in the Regular Army and entered active duty on 22 August 1963.  He reenlisted for 6 years on 19 October 1965.  He served in Korea from 5 January 1964 to 22 January 1965 and Vietnam from 25 November 1966 to 11 November 1967. 

3.  A copy of the charge sheet was not contained in the applicant's military personnel file.  However, on 24 November 1970, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

4.  The applicant signed his request for discharge which showed that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration (VA) [now known as the Department of Veterans Affairs] benefits; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

5.  In the applicant's request for discharge in lieu of trial by court martial, he provided a synopsis of his military career leading up to his absent without leave (AWOL) charges.  He explained that he served 2 years, 2 months, and 27 days on his first enlistment and was honorably discharged.  He added that he served  in Korea and in Vietnam.  He said that he had received two awards of the Good Conduct Medal, the Vietnam Service Medal, the Vietnam Campaign Medal and was promoted to sergeant.  The applicant explained that at the time he was placed on assignment instructions to Germany, his wife was pregnant.  He added that she was partially paralyzed and had difficulty giving birth to the first child.  He offered that he asked his commanding officer to take him off of assignment instructions, but he refused to.  He said that after the commander's refusal, he sought assistance from the chaplain to no avail.  The applicant concluded that approval of his request to be discharged in lieu of trial by court martial was in the best interest of the Army and himself.  


6.  On 28 December 1970, the captain in command of the U.S. Special Processing Company, Fort Knox, Kentucky, recommended approval of the applicant’s request for discharge for the good of the service.  

7.  On 28 December 1970, the lieutenant colonel in the position of commander of Headquarters, U.S. Special Processing Battalion, Fort Knox, Kentucky, recommended approval of the discharge action.  He recommended that the applicant be issued an Undesirable Discharge Certificate.

8.  On 8 January 1971, the major general in command of Headquarters, U.S. Army Armor Center, Fort Knox, Kentucky, approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 with the issuance of an Undesirable Discharge Certificate.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged under conditions other than honorable on 13 January 1971.  The applicant completed a total of 5 years, 
5 months, and 20 days of total active service with 702 days lost due to AWOL.

10.  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.

11.  Army Regulation 635-200 sets 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 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 (emphasis added), 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 argues, in effect, that his wife's pregnancy and his 1SG's dislike for him placed him in an unstable situation and ultimately caused him to make a wrong decision.  

2.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record shows that the applicant was afforded the opportunity to submit a statement to the commanding general explaining his situation.  It appears that the commanding general was well aware of the applicant's "extenuating" circumstances that caused him to go AWOL prior to approving the applicant's request and issuing him an Undesirable Discharge Certificate.  The record further shows that the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant's record of service included over 700 days of time lost due to AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis to upgrade the applicant's discharge.

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)                                         AR20090006854





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ABCMR Record of Proceedings (cont)                                         AR20090006854



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