BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090008317 


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 a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), which has been accepted as an application for the correction of military records, in effect, that his undesirable discharge, with his service characterized as under other than honorable conditions, be upgraded to a general discharge, under honorable conditions.

2.  The applicant states, in effect, that while he was growing up he lived under the strict roof of his father's house.  His father was a career military man (Air Force).  During that time, he was never subjected to drugs.  His father spent 20 years in the Air Force and ran his house accordingly.  When he went into the Army, he was not subjected to any substance abuse in his basic training or his AIT (advanced individual training), but when he was permanently assigned to Fort Hood, Texas, it was there at the time that everyone was coming back from Vietnam.  During that time he gave in to his temptations of exploring drugs because (a) he was young and naïve and (b) his offers were many.  After a time he went through drug rehabilitation so he could get back on track, but as he got back on track, the peer pressure in his company grew even greater.  He requested a transfer but was denied so, right or wrong, he made a decision to abscond; thinking he could run from the problem.  He blames himself for the poor choices - not the Army.  He has for many years regretted his decision back then but, that was then and this is now.  He is requesting an upgrade on the basis that before he succumbed to his temptations, he was a good Soldier and he is asking for a second chance so that he might receive some benefits after he is released from prison.
3.  The applicant submitted no additional documentary evidence in support of his request for an upgrade of his discharge.

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 on 27 July 1973 at the age of 18 years, 11 months, and 18 days (Date of Birth:  10 August 1954).  He successfully completed basic combat training at Fort Leonard Wood, Missouri, and his advanced individual training at Fort Polk, Louisiana.  Upon completion of his training he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was advanced in rank and pay grade to Private, 
E-2, on 27 November 1973 and to Private First Class, E-3, on 27 July 1974.  The record contains no documented significant acts of valor or achievement that would merit consideration in the decision to upgrade the applicant's discharge.

4.  The evidence shows that the applicant was read his rights under Article 15 procedures on 11 November 1974; and, while he was pending non-judicial punishment for failing to go at the time prescribed to his appointed place of duty on 8 November 1974, he departed from his unit in an absence without leave status and was dropped from the rolls of his unit.

5.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS (Expiration Term of Service)), of the applicant's DA Form 20, shows he was absent without leave from his unit from 11 November 1973 to 12 November 1973 at which time he was dropped from the rolls of his unit as a deserter.  A DA Forms 4187 (Personnel Action) on file in the applicant's service personnel records corroborates these entries.

6.  A DA Form 4187 on file in the applicant's service personnel record shows the applicant was apprehended by civilian authorities on 13 December 1974 in El Reno, Oklahoma, and was returned to military control at the Personnel Control Facility, Fort Sill, Oklahoma, on 17 December 1974.

7.  On 17 December 1974, court-martial charges were brought against the applicant for absenting himself without authority from his unit from 12 November 1974 and remaining so absent until 13 December 1974.  The applicant was informed of the charges against him on the same date.

8.  On an unspecified date in December 1974, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, for the good of the service.  In his request for discharge, the applicant stated he understood that he could request discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

9.  The applicant stated he was making a request for discharge of his own free will and had not been subjected to coercion by any person.  The applicant stated he had been advised of the implications that were attached to his request and, moreover, he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.

10.  The applicant acknowledged that prior to completing his request for discharge, he had been afforded the opportunity to consult with appointed counsel for consultation who had fully advised him of the nature of his rights under the UCMJ.  He stated that although counsel had furnished him legal advice, the decision to seek discharge was his own.

11.  The applicant acknowledged he understood that if his request was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged he understood that as a result of the issuance of such a discharge he could be deprived of all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if issued an Undesirable Discharge Certificate.

12.  The applicant was advised he could submit any statement in his own behalf which would accompany his request for discharge.  The applicant elected to 
submit a statement in his own behalf.  In his statement, the applicant stated, "I want out of the Army because I feel that the Army can't help me with my problem I am facing.  And, if I can't get out I will go AWOL [absent without leave] again."

13.  On 2 January 1975, the Commander, Processing Company, US Army Personnel Control Facility, recommended approval of the applicant's request for discharge and further recommended that he be furnished an Undesirable Discharge.  In his recommendation, the commander stated the applicant had become disenchanted with the Army and in the commander's opinion, further retention of this individual would not be in the best interest of the Army.

14.  On 6 January 1975, the Commander, US Army Field Artillery Center and Fort Sill, approved the applicant's request for discharge, and he directed that the applicant be issued an Undesirable Discharge Certificate.

15.  On 9 January 1975, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10.  The applicant's service was characterized as under other than honorable conditions.  The SPD (Separation Program Designator) shown on the applicant's DD Form 214 (Report of Separation from Active Duty) is KFS [For the Good of the Service - In Lieu of Trial by Court-Martial].  On the date of the applicant's discharge, he had completed 1 year, 3 months and 16 days of net creditable active service with 58 days lost time.

16.  The evidence shows the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations and on 15 October 1982, he was notified that after careful consideration of his military records and all other available evidence, the board had determined that he had been properly discharged.  Accordingly, the Secretary of the Army had directed that he be advised that his request for a change in the type and nature of his discharge had been denied.

17.  The evidence of record also shows that the applicant applied to the Army Board for the Correction of Military Records for an upgrade of his discharge to a fully honorable discharge.  On 30 April 1990, the applicant was notified that the Board had considered his application and had determined that it had not been filed within the time limits prescribed by Title 10, United States Code, Section 1552(b) and that it was not in the interest of justice to excuse his failure to timely file.

18.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had 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 in lieu of trial by court-martial at any time after charges had been preferred.  An undesirable discharge was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge be granted if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.

19.  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.  

20.  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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show, 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.

2.  The evidence shows the applicant absented himself without leave from his unit while he was pending disciplinary action under Article 15 procedures.  He was dropped from the rolls of his organization and he was apprehended by civilian authorities and returned to military control.

3.  Due to this absence, court-martial charges were brought against him.  Rather than face a court-martial, the applicant voluntarily requested discharge under the provision of Chapter 10, Army Regulation 635-200, for the good of the service - to avoid trial by court-martial.  He acknowledged that he was making the request of his own free will without coercion.  The applicant stated he had been advised of the implications that were attached to his request and he had no desire to perform further military service.


4.  The applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of court-martial, at his request when he reached the age of 20 years and 5 months.  There is no evidence in the applicant's personnel records to indicate that he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

5.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his discharge to a general or to a fully honorable 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)                                         AR20090008317





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ABCMR Record of Proceedings (cont)                                         AR20090008317



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