IN THE CASE OF:	  

		BOARD DATE:	    20 April 2010

		DOCKET NUMBER:  AR20090018290 


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 his under other than honorable conditions discharge be upgraded to a fully honorable discharge.

2.  The applicant states that upon his return from Korea in 1973 and reassignment to Fort Campbell, KY, his wife left with their baby.  He was very distraught and started drinking.  He went looking for her and failed to return to Fort Campbell.  He regrets the decision he made.  He lost his family and his military career.  However, in March 1999, he changed his life and he has been sober since.  

3.  The applicant provides five character reference letters in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's discharge be upgraded. 

2.  Counsel states that according to the letters of support from the applicant's friends, his discharge should be upgraded.

3.  Counsel provides an additional character reference letter in support of the applicant's request.



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 records show he enlisted in the Regular Army (RA) on 18 February 1971 and held military occupational specialty (MOS) 71B (Clerk Typist).  He served in Korea from on or about 1 December 1971 to 12 January 1973 and he was honorably discharged on 27 December 1972, while in Korea, for the purpose of immediate reenlistment.

3.  His records also show, while in Korea, he executed a 6-year reenlistment in the RA and he also held MOS 76S (Auto Repair Parts Specialist).  The highest rank/grade he attained during his military service was specialist four/E-4.

4.  On 21 May 1973, he departed his Fort Campbell unit in an absent without leave (AWOL) status and he was subsequently dropped from Army rolls (DFR) on 19 June 1973.  He returned to military control on 5 July 1973.

5.  On 12 July 1973, he again departed his Fort Campbell unit in an AWOL status and was subsequently DFR on 30 July 1973.  He was apprehended by civil authorities in Flat Rock, MI, and was returned to military control at Fort Leonard Wood, MO, on 23 September 1973.  

6  On 3 October 1973, his command preferred court-martial charges against him for two specifications of being AWOL from on or about 21 May through 5 July 1973 and on or about 12 July through 23 September 1973.  

7.  On 12 October 1973, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, he acknowledged he understood that by requesting discharge he understood that if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged that he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life.

9.  With his request for discharge, he submitted a statement wherein he indicated that he could not cope with military life.  He had a job waiting for him at home.  He tried to do well but could not take it any longer.  His wife needed him at home and he could do better at home for himself and his community.  

10.  On 17 October 1973, his immediate commander recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.  He also remarked that the applicant was unwilling to adjust to military service and that further disciplinary or rehabilitation action was futile.  

11.  On 17 October 1973, his intermediate commander recommended approval with the issuance of an Undesirable Discharge Certificate.  He further remarked that the applicant would never be a productive Soldier.

12.  On 17 October 1973, the separation authority approved the applicant's request for discharge under the provisions of chapter 10 of Army Regulation
635-200, for the good of the service and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 
19 October 1973, he was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 2 years, 4 months, and 7 days of creditable active military service and he had 118 days of lost time.

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  He and his counsel submitted the following documents:

	a.  A statement, dated 29 August 2009, from a retired U.S. Air Force member who states that he has known him for several years as a friend, mentor, and confidant.  He describes him as a skilled and knowledgeable individual who provides help to others willingly and was an asset to the community.

	b.  A statement, dated 20 August 2009, from an official at the Department of Veterans Affairs who describes him as a determined, sincere, honest, and highly respected individual who is trying to rebuild his life, piece by piece.  

	c.  A statement, dated 8 August 2009, from a friend who describes him as an individual with a high degree of integrity, responsibility, and ambition.  

	d.  An undated statement from a friend who describes him as a close friend and confidant as well as a man of his word.

	e.  A statement, dated 22 August 2009, from a friend who has known him for over 5 years and also describes him as a man of integrity and honesty.  He is also trustworthy and devoted to God and country.

	f.  A statement, dated 19 October 2009, from a retired Army sergeant major (SGM) who has known the applicant 5 years and describes him as an enthusiastic individual who willingly helps others within the community.  The SGM also describes him as a man of integrity, loyalty, service, and dependability.

15.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.

17.  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 contends that his discharge should be upgraded.   

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His post-service achievements and the several letters of support he provided are noted.  However, they are not sufficiently mitigating to change his discharge. 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.  He did not submit evidence that would satisfy this requirement.  

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an 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)                                         AR20090018290



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ABCMR Record of Proceedings (cont)                                         AR20090018290



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