IN THE CASE OF:	  

		BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090008418 


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 undesirable discharge (UD) be upgraded.

2.  The applicant states that he was released from the service for being absent without leave (AWOL).  He also states that he is a veteran of the Vietnam Era and for 3 years, 8 months, and 16 days he was in an active status.  He further states that the circumstances surrounding his under other than honorable conditions characterization of service was caused by pressure from his company commander at the 3rd Infantry Division, APO New York.  Also at that time he had other issues going on in his young life, his mother was ill, having had her 4th stroke.  After asking for emergency leave, he was denied because at the time he was under general court-martial proceedings and commanded to stay at the barracks.  He was so afraid that his mother was not going to make it that he went AWOL, going home to Houston, Texas.  He knows it has been over 34 years since his separation from the armed forces and he truly apologizes for his behavior during those years.    

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 enlisted in the Regular Army in pay grade E-1 on 20 March 1972, for 3 years.  He completed training and was awarded military occupational specialty 73C (Finance Specialist).  He was advanced to pay grade E-3 on 25 July 1972.  

3.  The applicant was honorably discharged on 20 December 1973 for the purpose of immediate reenlistment.  He reenlisted on 21 December 1973 for 6 years.  He was promoted to pay grade E-4 on 1 January 1974.  He served in Germany from 8 September 1972 to 3 December 1975.

4.  On 16 July 1974, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order issued by his superior commissioned officer on 27 June 1974.  The punishment imposed was extra duty for 2 hours per day for 5 days.  He did not appeal the punishment.

5.  On 12 February 1975, the applicant accepted punishment under Article 15, UCMJ, for failing to go to his appointed place of duty and being disrespectful towards his superior noncommissioned officer on 6 February 1975.  The punishment imposed was a reduction to pay grade E-3 (suspended for 60 days) and a forfeiture of $75.00 pay for 1 month.  He did not appeal the punishment.

6.  On 15 April 1975, the suspension of the applicant's punishment of reduction to pay grade E-3 was vacated and he was reduced to pay grade E-3. 

7.  On 19 May 1975, a DD Form 458 (Charge Sheet) was prepared by the Commander, US Army, 3rd Finance Company, 3rd Infantry Division, APO New York.  The applicant was charged with five specifications of intent to defraud for the procurement of repair services on 1 April 1975 and for professional services on 8, 9, 12 April and 13 May 1975, by wrongfully and unlawfully making and uttering checks for payments knowing he did not or would not have sufficient funds or credit for the payments.


8.  On 27 May 1975, the applicant's company commander recommended he be tried by general court-martial.

9.  On 6 June 1975, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 7 July 1975, the applicant accepted punishment under Article 15, UCMJ, for failing to go to his appointed place of duty on 17 June 1975.  The punishment imposed was a forfeiture of $50.00 pay for 1 month and 14 days extra duty.  He did not appeal the punishment.

11.  The applicant was reported AWOL on 7 August 1975.

12.  On 12 August 1975, while the applicant was still AWOL, a notification was sent to him advising him that an investigation would be conducted into the charges of fraudulent check writing preferred against him by his commander.  

13.  On 26 August 1975, the appropriate authority disapproved the applicant's 6 June 1975 request for discharge for the good of the service.

14.  The applicant was dropped from the rolls of his organization as a deserter on 6 September 1975.  He surrendered to military authorities at Fort Hood, Texas, on 8 September 1975.  

15.  On 21 October 1975, a DD Form 458 was prepared by the Commander, US Army, 3rd Finance Company, 3rd Infantry Division.  The applicant was charged with one specification of being AWOL from his organization, to wit:  3rd Finance Company, located at Leighton Barracks, Wurzburg, Germany, APO New York, from 7 August to 8 September 1975.

16.  The applicant's records show he was hospitalized on 10 September 1975.  There is no evidence of the reason for the hospitalization or when he was released.


17.  On an unknown date, after consulting with counsel, the applicant again voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the VA.  He waived his rights and elected to submit a statement in his own behalf.

18.  In an undated statement, the applicant stated that he went AWOL because he felt his company commander in Germany was trying to court-martial him for an offense that could be taken care of through finance.  He was tormented by his own mind and could not think of any other way to get the thing straight except go AWOL and get psychiatric help.  He further stated that he was hospitalized from 11 September through 3 October 1975 at Fort Sam Houston, Texas.  

19.  On 4 November 1975, the applicant's unit commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.  The unit commander stated that the applicant was personally interviewed and it was felt that rehabilitation would not be in the best interest of the applicant or the US Army.

20.  On 4 December 1975, the applicant's unit commander returned the request for reconsideration of the recommended type of discharge.  The unit commander stated that on the arrival of the applicant's permanent record, it had been discovered that at the time he departed AWOL, he was pending a general court-martial for fraud.

21.  On 16 December 1975, 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.

22.  The applicant was discharged on 6 January 1976 in pay grade E-1 under the provisions of Army Regulation 635-200, 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, and issued a UD Certificate.  He was credited with 3 years, 8 months, and 16 days total active service.  He was also credited with 32 days of lost time due to AWOL and was charged with 45 days excess leave.

23.  On 18 April 1979, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

24.  Army Regulation 635-200, in effect at the time, set forth the basic authority for 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, at any time after the charges had 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.

25.  Army Regulation 635-200, paragraph 3-7a of the current version provides that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

26.  Army Regulation 635-200, paragraph 3-7b of the current version provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed 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 applicant's contentions have been noted and found not to have merit.  The evidence shows that on 19 May 1975, the applicant, a finance specialist,  was charged with five specifications of writing fraudulent checks.  His company commander recommended he be tried by general court-martial for the offenses.  The applicant, after consulting with counsel, submitted a request to be discharged in lieu of trial by court-martial, waiving the opportunity to prove his innocence if he felt he was being wrongly charged.  Prior to his request being approved or disapproved he departed AWOL.  On 26 August 1975, the General Court-Martial Authority disapproved the applicant's request for discharge for the good of the service.  Upon his return to military control, after being charged with AWOL, he again voluntarily requested discharge in lieu of trial by court-martial.  Again, he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and also acknowledged he could be discharged under conditions other than honorable and furnished a UD Certificate.

3.  The applicant has submitted no evidence to mitigate his offenses or to show that he was denied any assistance from his chain of command with any of the problems he was having before or after his period of AWOL.  The evidence shows he was well aware of the reasons charges were preferred against him on 19 May 1975 and at that time he elected to be discharged.  

4.  Additionally, the applicant has submitted no evidence to mitigate his reasons for going AWOL.  Even if he was enduring financial hardship, it was his responsibility to seek assistance through the Red Cross, the Army Emergency Relief, or various other social service organizations that were available to assist him.

5.  The applicant 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.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

6.  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.

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  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)                                         AR20090008418





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ABCMR Record of Proceedings (cont)                                         AR20090008418



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