IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20100000004 


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 reason for discharge and the characterization of his service be upgraded.

2.  The applicant states he is now 62 years old and he has worked his whole life to become a better person.  He maintains his character now is not the same as that reflected by his military record.  

3.  The applicant provides a copy of his 1970 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and five letters of support.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s 1970 discharge be upgraded and the reason for separation be amended to reflect a “non-derogatory reason for separation” such as “completion of service.”

2.  Counsel states the applicant entered military service during the Vietnam War and was able to advance to the rank of specialist/E-5.  She states in 1969, while stationed at Fort Bragg, North Carolina he escaped a fire in his trailer but had to borrow clothing from a neighbor in order to hitchhike to base.  She states the applicant’s first sergeant would not speak to him unless he was in uniform and sent him to the Red Cross.  She states the applicant thus acquired a distaste for the Army and did not return to duty for 2 months.


3.  Counsel states the applicant was absent without leave (AWOL) on two occasions for which he was convicted by a court-martial.  After being AWOL a third time the applicant chose the “lesser of two evils” accepting a discharge rather than facing a third court-martial.  She notes while the applicant's separation document indicates he was afforded the opportunity to consult with counsel, there is no evidence that he discussed his options with a lawyer.  He was briefed “en masse” with numerous other AWOL Soldiers.

4.  Counsel notes the applicant made poor decisions but he was punished appropriately for his offenses and has now spent the better part of his adult life explaining his undesirable discharge and derogatory reason for separation.  She states in spite of all this, the applicant has worked hard to build a life for himself.  He earned a 4th degree black belt in Taekwondo, opened his own studio and has focused on instructing youth and adolescents.  He pursued teaching, and is well-respected in his community.  His entire adult life has been without blemish.  “If ever there were a case presented to the board for an upgrade on the basis of a service member’s post-service accomplishments” this is that case.  She states he is an inspiration to others.

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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 1 May 1967.  He was 19 years old at the time of his enlistment and he had completed 10 years of formal education.

3.  The applicant successfully completed basic and advanced individual training and in September 1967 he was assigned to an infantry unit in Korea as a cook.  By August 1968 he had attained the rank of Specialist/E-5.



4.  In November 1968, he was reassigned to Fort Bragg, North Carolina.  In March 1969, he was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL between 4 and 7 March 1969.  The applicant was AWOL again between 15 April and 28 June 1969 and from 8 September to 30 September 1969.  He was convicted by two separate special courts-martial for the last two periods of AWOL and he was ultimately reduced to pay grade E-1.

5.  On 2 March 1970, the applicant again departed AWOL.  He was apprehended by civilian authorities and returned to military control in September 1970.

6.  On 28 September 1970, after charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  As a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He did not submit any statements in his own behalf and both his signature and initials, along with the signature of his counsel, are reflected on his request for separation.

7.  On 14 October 1970, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Undesirable Discharge Certificate be issued. 

8.  On 23 October 1970, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 with his service characterized as under other than honorable conditions.  The reason and authority for his discharge is recorded as “AR 635-200 SPN 246.”  His DD Form 214 does not reflect a narrative reason for discharge.  At the time of the applicant’s separation he was credited with 2 years, 5 months, and 16 days of active Federal service and he had more than 350 days of lost time due to being AWOL and in confinement.

9.  The statements submitted in support of the applicant’s request include letters from his spouse, step-daughter, a family friend, and parents of students at his Taekwondo studio.  Each of the statements attests to the applicant’s upstanding citizenship, compassion, and willingness to help others, especially children.

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

11.  References:

   a.   Army Regulation 635-200 sets forth the basic authority for 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.  However, at the time of the applicant's separation an undesirable discharge was normally considered appropriate.

   b.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

   c.  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 contentions were considered and it is apparent that the applicant's discharge was based on his overall performance during his period of military service.  The applicant’s successful completion of training, service in Korea, and advancement to the rank of specialist/E-5 is evidence the applicant was capable of fully honorable service.  

2.  The applicant's contentions regarding his post-service achievements and conduct, as well as his statements of support, were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

3.  The applicant's military service records show he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and there is no indication of procedural errors that would have jeopardized his rights.  Contrary to the contentions of the applicant’s counsel, the available evidence indicates the applicant did consult with counsel as part of his separation processing and attested to that fact by his signature, initials and the signature of his legal counsel at the time he requested discharge.

4.  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.  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)                                         AR20100000004



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000004



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1