IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090021813 


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.

2.  The applicant states his discharge was improper and inequitable because a voluntary discharge for the good of the service grew increasingly popular as the Vietnam War drew to a close, particularly with Soldiers who were in an absent without leave (AWOL) status and wanted a quick way to become a civilian.

	a.  He provides statistics for all four Services for fiscal years 1967 through 1974 to demonstrate the number of discharges for the good of the service.

	b.  He states the Army established processing centers, referred to as Special Processing Detachments and later named Personnel Control Facilities, at various locations throughout the United States that processed these discharges in assembly-line fashion.

	c.  He states, "[g]ood of the service discharges lack explicit congressional authorization, as a circumvention of the [Uniform Code of Military Justice (UCMJ)].  The government's case was never presented at trial…This type of discharge reflects poor leadership because the service member was never offered rehabilitation or given a second chance based on the weak evidence."

	d.  He states he was given a medical examination upon entry into military service that showed he had a heart murmur; however, he was not given a medical discharge.

	e.  He refers to Army Discharge Review Board (ADRB) Standard Operating Procedures Annex F-1.

		(1)  He cites six ADRB cases in which the characterization of the discharges were upgraded from undesirable; five of them to general under honorable conditions and one to an honorable discharge.

		(2)  He refers to the "whole-man concept" and cites 10 more ADRB cases in which the characterization of the discharges were upgraded, 8 of them to general under honorable conditions and 2 to honorable discharges.  He states his discharge should be considered under the "whole-man concept" and upgraded to honorable.

	f.  He states his ability to deal with military service was impaired by his youth and immaturity.  Consequently, the Board should consider his capability at the time to comprehend the actions leading to his separation and the impact of the separation action on his life.

	g.  He provides a brief summary of his military service, personal life, and work history over the past 30 years.

		(1)  He states he was in the Personnel Control Facility at Fort Knox, KY, waiting for a medical discharge when he found out his wife was going to have a child.  He mailed letters to his wife while in the stockade, but never received any response.  He adds his letters were never mailed by the stockade's staff.

		(2)  He states that a commissioned officer offered individuals in the stockade the opportunity to request a discharge for the good of the service.  It was at this same time that his personal belongings were stolen, so he went AWOL (again).

		(3)  He went to Columbus, OH, with some other individuals.  He was in an AWOL status for 6 months and struggling with his feelings when he was arrested in Akron, OH.  He describes the difficulties he suffered while in the Stark County Jail.  The military police eventually picked him up and he was returned to Fort Knox, KY.

		(4)  He states that in April 1972 he received paperwork in the mail to sign for his discharge.  He signed the documents and returned them to the Army.

		(5)  He states he earned his high school diploma in 1973, got married in 1977, and then purchased his first home.  He worked at odd jobs after his discharge that included shipping and receiving for a window manufacturer.  He graduated from Wooster Business College in November 1991 and has worked in security services since then.

		(6)  He expresses his wish that he could go back in time and change events.  He states he has learned some difficult lessons and is a better man because of his life experiences.

	h.  He concludes by stating the Board should give significant weight to the awards and decorations he received while in the Army, along with his outstanding post-service conduct.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), separation packet, medical records, a police report, three certificates, and two character reference letters.

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 and entered active duty in the Regular Army for a period of 2 years on 28 May 1971.  At the time he was 20 years of age.

3.  On 7 June 1971, the applicant was assigned to Company D, 5th Battalion, 2nd Training Brigade, Fort Polk, LA, for basic combat training.  He went AWOL from training on 9 July 1971.

4.  On 26 January 1972, charges were preferred against the applicant for being AWOL from 9 July 1971 to 21 December 1971.

5.  On 8 February 1972, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

	a.  He was afforded the opportunity to consult with counsel.  He was advised that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

   b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant submitted a statement in his own behalf.  It shows he did not really want to enlist in the Army, but did so because his draft lottery number was low.  He states he tried to fail the entrance physical examination by losing weight; however, he did not lose enough weight.  He acknowledged going AWOL for 6 months and indicated he would go AWOL again if he did not get a discharge from the Army.
   
6.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with a characterization of service of under other than honorable conditions.

7.  On 14 February 1972, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, with a character of service of under other than honorable conditions.

8.  The applicant's DD Form 214 shows he was discharged on 23 February 1972 in accordance with chapter 10, Army Regulation 635-200, for the good of the service with service characterized as under other than honorable conditions.  At the time he had completed 3 months and 14 days of net active service this period and he had 165 days of lost time from 9 July 1971 through 20 December 1971.
   
9.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

10.  In support of his request the applicant provides the following documents:

	a.  A Standard Form 89 (Report of Medical History), dated 13 May 1971, shows in item 20 (Have You Ever Had or Have You Now) the applicant placed a checkmark in the "Yes" column for "Palpitation or Pounding Heart."  Item 39 (Physician's Summary and Elaboration of All Pertinent Data) shows the examining doctor entered the note "occasional pounding heart."
	b.  A Standard Form 93 (Report of Medical Examination), dated 13 May 1971, shows in the "Clinical Evaluation" section, item 29 (Heart (Thrust, size, rhythm, sound?)), that there is no entry in either the "Normal" or "Abnormal" column; however, in the "Notes" section the examining doctor entered "29 - Normal."  Item 77 (Examinee) shows the doctor placed an "X" in the block for "Is Qualified For" and he circled "RA" [Regular Army].

	c.  The second page of a Standard Form 89 [page 1 was not submitted], dated 10 January 1972, shows in item 25 (Physician's Summary and Elaboration of All Pertinent Data) the examining doctor entered the note "heart trouble - patient told he had a murmur."

	d.  A Standard Form 93, dated 10 January 1972, shows in the "Clinical Evaluation" section, item 29, the examining doctor placed a checkmark in the "Abnormal" column and in the "Notes" section he entered "probably functional heart murmur - Gr #1."  Item 77 shows the doctor placed an "X" in the block for "Is Qualified For" and entered the stamp "SEPARATION."

	e.  An Akron Municipal Court, Index Inquiry, dated 7 July 2009, with three Disposition Cards show the applicant was arrested for the offenses of intoxication on 17 January 1971, desertion on 7 December 1971, and carrying a concealed weapon (knife) on 17 November 1972.

	f.  Three certificates show he completed the Ohio Peace Officer Private Security Training Program on 7 November 1991, was recognized as Officer of the month on 31 May 1997, and completed the Ohio Private Security Firearms Requalification Program on 9 April 2009.

	g.  Two character reference letters.

		(1)  The letter from Ms. N____ C____ (the applicant's sister) states she believes their father's injuries during the Korean War influenced her brother's life and contributed to his decisions.  She states the applicant currently works in security services protecting other people.  She adds that the applicant was neglected as a child, but always made time to visit their father in his later years.

		(2)  The letter from Mr. J____ G. M____ states he has known the applicant for 41 years and that the applicant has been an armed security officer for 20 years.  He states the applicant is a good worker and upstanding citizen.



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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 an individual who was discharged for the good of the service.

	b.  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.

	c.  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 under other than honorable conditions discharge should be upgraded to an honorable discharge because he was young and immature, he should have been given a medical discharge based on his heart murmur, his discharge was improper and inequitable, and the ADRB has upgraded other discharges that were based on circumstances and mitigating factors similar to his.

2.  Records show the applicant was 20 years of age when he enlisted in the U.S. Army.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.

3.  Records show the applicant underwent a medical examination shortly after he returned from AWOL and approximately 1 month prior to his discharge.  The examining medical doctor found the applicant qualified for separation.  There is no evidence he was found unfit for duty.  Therefore, the evidence of record does not support the applicant's claim that he should have been processed for a medical discharge.

4.  The applicant's request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the type of discharge was proper and the characterization of service directed was equitable.

5.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge.  His contention that the ADRB has upgraded other discharges that were based on circumstances and mitigating factors similar to his is noteworthy, but not applicable to his case.  The ADRB considers each individual application for upgrade of a discharge on the specific facts and circumstances related to that former Soldier's case.  Therefore, the fact that the ADRB decides to upgrade a particular Soldier's discharge does not mean a similar decision will be rendered in the case of another former Soldier's discharge.

6.  The evidence of record shows the applicant was AWOL for a total of 165 days (i.e., more than 5 months) during the period of service under review.  In addition, the evidence of record shows he completed less than 4 months of his 2-year enlistment commitment.  Thus, the evidence of record clearly shows that the applicant's record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and the applicant is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service during the period of service under review was not satisfactory and he is not entitled to a general under honorable conditions discharge.

7.  The applicant's post-service conduct and work ethic since his discharge were carefully considered.  The applicant's good post-service conduct and work ethic are noteworthy, but not so meritorious as to warrant an upgrade of his discharge.

8.  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.  Therefore, in view of all of the above, there is no basis for granting the applicant's requested relief.

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)                                         AR20090021813



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021813



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1