IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011272 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge and that his rank be restored to specialist (SPC)/E-4.

2.  The applicant states, in effect, that he was convinced by a commissioned officer to request a discharge in lieu of trial by court-martial:

	a.  He states he served 32 months of good active service and that he is requesting special consideration for this service.

   b.  He states that he went absent without leave (AWOL) after he made several attempts to get reassigned to the United States from Germany.  He adds that, at the time, he felt as though he had no choice because no one in the Army was willing to help him.

	c.  The applicant provides a brief summary of his life before he entered the U.S. Army.  He adds that his wife got pregnant with their second son in January 1977 and that he enlisted in the Army on 4 April 1977.

   d.  The applicant provides an outline of significant events, actions, and achievements that occurred during his period of service in the U.S. Army.  He highlights the financial challenges a young married Soldier faced while living in Germany with his family, and the decision he made to leave his wife and children in the States while he served in Germany.  He describes the difficulties his wife and children had while living with her parents and the decision for her to move into a low income apartment complex where crime was prevalent.
   
	e.  He states that he sought the advice of a Chaplain and his chain of command about his family situation, but they were not very helpful.  He adds that he became sick from worrying about his family.  After about 4 months in Germany, he was notified of his grandmother's death and he returned home on leave.  He adds that his supervisors gave him advice to seek assistance about his family situation at Fort Huachuca, Arizona, while he was home on leave.  He also states that officials at Fort Huachuca were not very helpful to him.

   f.  He states that as he approached the end of his leave he made a decision to put his family first, he did not return to Germany, and he went AWOL in January 1980.  He states that he obtained employment and adds that the 
6 months he was in an AWOL status was the most stressful period of his life. 

	g.  In July 1980, he was stopped by a Tempe City Police Officer for a traffic violation.  Based on his AWOL status he was taken into custody and he was returned to military control at Fort Ord, California.  He adds that he was treated like a criminal and given no respect.

	h.  He states the commanding officer explained to him the situation he was in, that he was facing a trial by court-martial, and he could request a discharge.  He also states that he was given information about upgrading his discharge, encouraged to consider a discharge, and coerced into signing a request for discharge.

   i.  The applicant provides an outline of his employment history, activities, and accomplishments, along with a summary of his personal life since being discharged from the U.S. Army.

3.  The applicant provides, in support of his application, a ten-page self-authored letter.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge.

2.  Counsel, in effect, defers to the applicant.



3.  Counsel provides copies of the applicant's high school certificate of equivalency, three certificates of training, two letters, two evaluation reports, a magazine article, three civilian certificates of training, college transcripts, and two letters of endorsement.

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 enlisted in the U.S. Army Reserve on 24 March 1977 and enlisted in the Regular Army for a period of 4 years on 5 April 1977. Upon completion of training, he was awarded military occupational specialty
24G (Improved HAWK Information Coordination Central Mechanic).  The applicant was assigned overseas to Germany on 23 August 1979.

3.  A DA Form 4187 (Personnel Action), dated 29 January 1980, shows the applicant's duty status was changed from present for duty (PDY) to ordinary leave, effective 17 December 1979.

4.  A DA Form 4187, dated 29 January 1980, shows the applicant's duty status was changed from ordinary leave to AWOL, effective 30 December 1979.

5.  A DA Form 4187, dated 29 January 1980, shows the applicant's duty status was changed from AWOL to dropped from the rolls (DFR), effective 28 January 1980.

6.  A DD Form 458 (Charge Sheet), dated 30 January 1980, shows that the Commander, 2nd Battalion, 57th Air Defense Artillery (Germany), preferred charges against the applicant for being AWOL from his unit beginning 30 December 1979 and that he remained absent in a deserter status.

7.  A DA Form 4187, dated 10 July 1980, as corrected by a DA Form 4187, dated 16 July 1980, show the applicant's duty status was changed from DFR to PDY, effective 7 July 1980.

8.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  Item 18 (Appointments and Reductions) the applicant was promoted to specialist four (E-4) on 28 July 1978 and that he was reduced to private (E-1) with an adjusted date of rank of 1 July 1980.

   b.  Item 21 (Time Lost) that he was AWOL and in a deserter status for
190 days from 30 December 1979 through 6 July 1980.

9.  The applicant's records do not contain any evidence that he requested an extension of his leave while he was on ordinary leave in the U.S.  In addition, there is no evidence in the applicant's records that indicate he submitted a request for compassionate reassignment or a hardship discharge, or that such a request was not acted upon or disapproved by his chain of command. 

10.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

11.  Headquarters, 7th Infantry Division and Fort Ord, Fort Ord, CA, Orders
232-515, dated 19 August 1980, reassigned the applicant from the Processing Company, Fort Ord, to the U.S. Army Transfer Point, Fort Ord, for separation processing and discharge on 21 August 1980.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 21 August 1980 in accordance with the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial, and his service was characterized as under other than honorable conditions.  At the time he had completed 2 years, 10 months, and 7 days of net active service.  This document also shows in:

   a.  item 4a (Grade, Rate or Rank) the entry "PV1", item 4b (Pay Grade) the entry "E1", and item 12 (Record of Service), block h (Effective Date of Pay Grade) the entry "80 07 01."

   b.  item 29 (Dates of Time Lost During This Period) that he had time lost from 30 December 1979 through 6 July 1980.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  In support of his application, the applicant and his counsel provide the following documents:
   
   a.  his high school certificate of equivalency, three certificates of training, two letters of appreciation/commendation, and two evaluation reports that show the applicant's achievements and accomplishments from March 1977 to July 1979.

	b. a magazine article (The Vietnam Veterans Adviser) reproduced from the November 1979 issue of Penthouse Magazine, that, in pertinent part, explains to veterans the process to upgrade a discharge by applying to the Army Discharge Review Board or the ABCMR.

   c.  three civilian certificates of training, his college transcripts, and two letters of endorsement that show the applicant's achievements, and attest to his reliability as an employee and record of upward mobility in the civilian workforce.

15.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

16.  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 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.  The governing regulation requires the separation authority to reduce the individual to the lowest enlisted grade upon approval of the discharge.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is 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.

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.

19.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the
DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

20.  Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation, in effect at the time of the applicant's discharge, contains item-by-item instructions for completing the DD Form 214.  The instructions for:

   a.  item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) state enter active duty grade or rank and pay grade at time of separation.

	b.  item 12 (Record of Service), block h (Effective Date of Pay Grade), states enter the effective date of promotion to pay grade.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to honorable and his rank should be restored to SPC/E-4.  He contends he was experiencing family problems, Army officials failed to assist him, and he was a good Soldier prior to going AWOL.

2.  The applicant's contentions were carefully considered.  

   a.  The applicant's record of service prior to the offense for which he requested discharge in lieu of trial by court-martial is noteworthy; however, it is insufficient as the sole basis for upgrading his discharge.

	b.  There is no evidence that shows the applicant requested an extension of his ordinary leave, a compassionate reassignment or a hardship discharge prior to going AWOL on 30 December 1979, or that any such request was returned without action or disapproved by Army officials.  Thus, he provides insufficient evidence to support his contention that Army officials failed to assist him.
   
   c.  The applicant's post-service conduct and personal commitment to his family since his discharge were also carefully considered.  The applicant's good post service conduct and achievements are commendable but not so meritorious as to warrant an upgrade of his discharge.

3.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service to avoid trial by court-martial.
Moreover, the offense that led to the discharge outweighs his overall record.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  Thus, in the absence of evidence to the contrary, the presumption is that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Thus, considering all the facts of the case, the character of service directed was appropriate.  Therefore, the applicant is not entitled to upgrade of the character of his discharge or restoration of his rank.

5.  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)                                         AR20090011272



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ABCMR Record of Proceedings (cont)                                         AR20090011272



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