BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090019765 


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 undesirable discharge be upgraded.

2.  The applicant states he was not given fair legal representation by his command.  He contends his problems in the military started after his Vietnam tour of duty.  There were multiple incidents with his company commander and when his requests for leave were denied he would go absent without leave (AWOL).  He goes on to state he was faced with racial issues that resulted in the destruction of his military career.

3.  The applicant states he often had nightmares, episodes of anger, and depression.  He points out he was awarded the Purple Heart for wounds received in Vietnam.  While in Germany, he requested medical care and explained the symptoms he was suffering.  The medic or doctor would simply tell him there was nothing wrong with him, that what he was experiencing was normal, and he never got care for his mental health.

4.  The applicant states he continued to have problems with his company commander.  He claims while confined at Fort Leavenworth, he was told of a program where he would serve 1 year and get an honorable discharge.  He went through boot camp again, he was given the choice of duty station, he selected Fort Hood, and when he completed boot camp training he was promoted to squad leader.  After completion of this training, he had 14 days of leave and he received orders for assignment to Fort Devens, Massachusetts.  He informed a sergeant of the error (this station was not his requested duty station) and was told not to worry and that the sergeant would get his orders corrected.  He never received any paperwork and was reported AWOL.  He was arrested in Texas, taken to Fort Hood, and informed he was going to be discharged under chapter 10.  He was sent home and told the discharge papers would be mailed to him.  His discharge papers never arrived at his home.  He was reported AWOL again after the Army sent him home.  He was arrested again and returned to Fort Hood.  When he was released a couple of months later, he received his discharge papers.  He was never involved or agreed to anything, he did not sign any paperwork, and his discharge was processed entirely by the Army.

5.  The applicant states sometime after his discharge he received paperwork from President Carter granting him a full pardon; however, the Army informed him there is no record of any pardon for him.  He points out records were burned and lost in St. Louis, Missouri, and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) was made up and has multiple errors in it (he was never a cook, his date of birth is wrong, the AWOL dates are wrong, and he never escaped from any confinement).  He indicates he worked for the Federal government from 1982 to 1998, he never had any problems of any kind, he attended various military supply schools, he was awarded two superior job performance awards, he has been working for a contractor since 2000, and he is presently under medical care for a stroke he suffered in August 2008.  He also suffers from hypertension, high triglycerides and high cholesterol, and episodes of anger, depression, flashbacks, and crying spells.

6.  The applicant provides:

* award certificate for Purple Heart
* letter of recommendation
* certificates of achievement, commendation, promotion, and training
* nine character reference letters
* DD Form 214

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 Regular Army on 22 September 1966 for a period of 3 years.  He successfully completed basic combat training, advanced individual training, and basic airborne training.  His DA Form 20 (Enlisted Qualification Record) shows he was awarded military occupational specialty 94B (cook) and later 11D (armor intelligence specialist).  He served in Vietnam from 29 October 1967 through 28 October 1968.
 
3.  On 19 February 1969, nonjudicial punishment was imposed against the applicant for failing to be at his place of duty at the time prescribed.  His punishment consisted of restriction.

4.  On 21 March 1969, nonjudicial punishment was imposed against the applicant for being AWOL from 15 March 1968 to 20 March 1969.  His punishment consisted of a reduction to E-3, a forfeiture of pay, restriction, and extra duty.

5.  On 7 April 1969, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties.  His punishment consisted of a reduction to E-2 (suspended), restriction, and extra duty.

6.  On 22 August 1969, the applicant was convicted by a special court-martial of four specifications of being AWOL from 20 May 1969 to 22 May 1969, 23 May 1969 to 1 June 1969, 2 June 1969 to 11 June 1969, and 11 June 1969 to 21 July 1969 and three specifications of breaking restriction.  He was sentenced to be confined at hard labor for 3 months and 21 days, to forfeit $100.00 pay per month for 3 months, and to be reduced to E-1.  On 9 October 1969, the convening authority approved only so much of the sentence as provided for forfeiture of $100.00 pay per month for 3 months, reduction to E-1, and confinement at hard labor for 1 month.

7.  On 20 May 1970, the applicant was convicted by a special court-martial of three specifications of being AWOL from 6 November 1969 to 16 November 1969, 4 December 1969 to 21 January 1970, and 26 January 1970 to 29 April 1970 and escaping from confinement.  He was sentenced to be discharged from the service with a bad conduct discharge and to be confined at hard labor for 5 months.  On 29 September 1970, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 5 months.

8.  On 17 November 1970, the applicant was convicted by a general court-martial of being AWOL from 22 June 1970 to 7 September 1970.  He was sentenced to be discharged from the service with a bad conduct discharge, to be confined at hard labor for 11 months, and to total forfeiture of all pay and allowances.  On 17 December 1970, the convening authority approved the sentence.

9.  On 9 June 1971, the U.S. Army Court of Military Review affirmed the findings and sentence.

10.  On 2 August 1971, the unexecuted portion of the affirmed and approved sentence to a bad conduct discharge, to be confined at hard labor for 11 months, and total forfeiture of all pay and allowances, was suspended until 1 September 1971.  By order of the Secretary of the Army, it was directed that the applicant be transferred to the U.S. Army Correctional Training Facility, Fort Riley, Kansas, for training and restoration effective 1 September 1971.  The applicant was required to extend his enlistment in the Regular Army for a period of 11 months and restoration was subject to forfeiture of sufficient good conduct time to complete the correctional training on 1 September 1971.

11.  On 3 November 1971, the unexecuted portion of the entire sentence was suspended until 1 September 1971 and was automatically remitted on that date upon the applicant's restoration to duty.

12.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, the Army Discharge Review Board (ADRB) proceedings indicate the applicant went AWOL on 14 September 1971 and returned to military control on 12 November 1971.  He went AWOL again on 3 January 1972 and returned to military control on 11 November 1972.  On 22 November 1972, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  On 1 December 1972, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.

13.  The discharge orders and the applicant's DD Form 214 show he was separated with an undesirable discharge on 11 January 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He served a total of 3 years, 7 months, and 21 days of creditable active service with 975 days of lost time.

14.  In support of his claim, the applicant provided nine character reference letters from a sheriff, friends, a judge, and employers.  They attest that the applicant is a law-abiding citizen, responsible, dependable, an excellent employee, hardworking, highly motivated, and professional.

15.  On 31 January 1983, the ADRB denied the applicant's request for an honorable discharge.

16.  A DD Form 215 (Correction to DD Form 214), dated 8 April 1986, amended the applicant's date of birth.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

18.  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.

19.  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.  There is no evidence of record which shows the applicant was a victim of racial discrimination.

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  The applicant's remaining contentions were noted.  However, in the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20090019765





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ABCMR Record of Proceedings (cont)                                         AR20090019765



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