IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090019335 


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 be upgraded to at least a general discharge.

2.  The applicant states that he served his country in Vietnam and when he came home to the United States he did not receive any pay for some reason which was never explained to him.  He goes on to state that he told "them" that he had to have money to support his family or he would have to find a job.  He continues by stating that no one explained anything to him, so he left the base and found work.  He further states that "they" found him and returned him to base and promised to correct the problem, but he still never received any pay, so he left again.  He also states that he was told by his attorney that everything was taken care of, but he did not notice the type of discharge he received until he applied for Department of Veterans Affairs (VA) benefits.

3.  The applicant provides copies of his personnel records, copies of the facts and circumstances surrounding his discharge, and copies of his leave and earnings statements.

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 official records were not available to the Board.  However, the records provided by the applicant show that he enlisted in the Regular Army on 30 June 1970 for a period of 3 years and training in the automotive maintenance career management field.  His records indicate that he was divorced at the time of his enlistment.  However, he initiated a Class Q allotment in December 1970 which indicates that he got married.

3.  He successfully completed his training and was transferred to Germany on 12 March 1971 for duty as a wheel vehicle mechanic.

4.  On 20 July 1971, he reenlisted for a period of 3 years and assignment to Vietnam.

5.  He was transferred to Vietnam on 11 November 1971 and served until 25 March 1972, when he was attached to a unit at Fort Hood, Texas.

6.  The available records show that he went absent without leave (AWOL) from 4 October 1972 to 27 October 1972.  However, the record is silent as to any punishment imposed for that offense.

7.  On 25 May 1973, he was convicted by a special court-martial at Fort Campbell, Kentucky, of being AWOL from 31 October 1972 to 31 January 1973.  He was sentenced to a reduction to the pay grade of E-3 and a forfeiture of pay for 3 months.

8.  In June 1973, finance officials discovered that the applicant had been divorced since 19 October 1971 and had continued to receive benefits.  Accordingly, collection actions began due to the overpayment of allowances of over $3,000.00.

9.  The applicant again went AWOL from 9 June 1973 to 31 October 1973, 1 November 1973 to 2 November 1973, and 24 September 1973 to 1 October 1973.  The applicant was apprehended by civil authorities and was returned to military control at Fort Benning, Georgia, where charges were preferred against him.

10.  On 18 December 1973 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In his request he stated that he understood that he may be discharged with an undesirable discharge, that he understood the prejudice he may be subjected to as a result of such a discharge, that he understood that he would be deprived of many or all benefits, and that he was not subjected to coercion by anyone to submit such a request.  He also elected to submit a statement in his own behalf wherein he asserted his problems were caused by Army finance officials who would not listen to him and completely disregarded his situation.  He went on to state that he simply had to go out and get a job to make ends meet.

11.  The appropriate authority (a major general) approved the applicant's request and directed that he be furnished an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions on 23 January 1974 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  He had served 2 years, 8 months, and 22 days of total active service and had 343 days of lost time due to AWOL.  He still had in excess of $3,000.00 in debt to the government at the time of his discharge.

13.  There is no evidence in the available records to show the applicant ever sought financial counseling for his indebtedness or that he ever requested to have the debt remitted or cancelled.

14.  There is also no evidence to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  A review of the leave and earnings statements provided by the applicant reflects the applicant was paid more than his entitlements throughout his service.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge they might receive.  At the time, an undesirable discharge was normally considered appropriate.
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's contention that he went AWOL because the Army stopped paying him has been noted and found to lack merit.  While the evidence clearly shows he had a debt to the government, that debt was caused by the applicant failing to properly/timely notify officials that he had divorced his spouse approximately 19 months earlier.

2.  As a result, Army finance officials began the collection process because the applicant had been paid benefits to which he was not entitled.

3.  In any event, the applicant failed to show through the evidence submitted with his application that he took any steps other than to go AWOL to resolve his financial indebtedness at the time.  In fact, going AWOL only contributed further to his indebtedness and did nothing to solve his problems.

4.  Therefore, given the excessive amount of lost time accumulated by the applicant, his service was not sufficiently mitigating to warrant an upgrade of his discharge.

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)                                         AR20090019335



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ABCMR Record of Proceedings (cont)                                         AR20090019335



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