IN THE CASE OF:	  

		BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20100000066 


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 undesirable discharge (UD) to a general discharge.  

2.  The applicant states he was 17 years of age when he joined the Army and the recruiter lied about all conditions.  He went absent without leave (AWOL) after the senior non-commissioned officer ordered him to load and bury excess motor pool parts right before an inspector general (IG) inspection in 1973.  They then had other active duty personnel dig them up and they sold them on the black market after the IG inspection.  He served with the 3rd Infantry Division, 110th Engineer Battalion in Kitzingen, Germany.  He recently separated from his wife, his house was foreclosed, and he is living in a homeless shelter.  He feels helpless, hopeless, and desperate.  

3.  The applicant provides no additional documentation in support of his application.

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.  On 30 September 1972, at 17 years and 6 months of age, the applicant enlisted in the Regular Army (RA) in pay grade E-1 for 3 years.  He completed training and was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  He was advanced to pay grade E-2 on 12 January 1973.  This is the highest grade he held during his period of service.  He served in Germany from 11 March 1973 to 14 March 1974.

3.  On 12 December 1973, the applicant accepted punishment under Article 15 of the Uniform Code of Military Justice for being AWOL from 1 October through 26 November 1973.  His punishment included a forfeiture of $120.00 pay for 2 months, 30 days of restriction, and 10 days of extra duty.  He did not appeal the punishment.

4.  On 7 March 1974, the applicant was convicted by a summary court-martial for one specification of being AWOL from 10 January through 4 February 1974.  He was sentenced to a forfeiture of pay for 1 month, reduction to pay grade E-1, and 10 days of restriction.  The sentence was approved and ordered executed on 
7 March 1974.  The applicant was reduced to pay grade E-1 on this date.

5.  On 2 January 1975, a DD Form 458 (Charge Sheet) was prepared by the Commander, US Army Personnel Control Facility, US Army Training Center Engineer, Fort Leonard Wood, Missouri.  He was charged with one specification of being AWOL from 15 March 1974 through 17 December 1974.

6.  On 2 January 1975, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.



7.  In a statement, dated 2 January 1975, the applicant indicated he should be discharged because the recruiter gave him a lot of false information.  He stated he was told he would be promoted rapidly, that the Army was changing to a 
4 day work week and that it would be just like having a civilian job.  The major reason he wanted to get out of the military was he was having family problems.  His stepfather was an alcoholic and his mother was planning on leaving his stepfather when he [the applicant] got out of the Army.  His mother was in ill health and he was going back to relieve her of some of her worries.  

8.  On 8 January 1975, the applicant's unit commander recommended approval of the applicant's request for discharge with the issuance of a UD Certificate.  The unit commander stated the applicant had demonstrated to his immediate supervisor that he was unwilling to adjust to military service and that any further disciplinary rehabilitative action would be futile.  

9.  On 8 January 1975, the applicant's battalion commander recommended approval of the applicant's request for discharge with the issuance of a UD Certificate.  The battalion commander stated, in his opinion, the applicant would never be a productive Soldier.

10.  On 10 January 1975, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a UD Certificate be issued.

11.  The applicant was discharged in pay grade E-1, on 15 January 1975, for the good of the service in lieu of trial by court-martial with a UD.  He was credited with 1 year, 3 months, and 23 days of net active service and 360 days of lost time due to being AWOL.

12.  There is no evidence the applicant requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.  His records are absent any evidence of awards for meritorious achievement or performance during his period of service.

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

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 specified that a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges had been preferred, could submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contentions were considered; however, they are not supported by the evidence and do not support an upgrade of his UD.  He was 17 years and 6 months of age when he enlisted in the RA.  He served from his enlistment in January 1972 until December 1973 without incident.  He was 18 and 19 years old, respectively, when he went AWOL.  

3.  The evidence shows the applicant was pending trial for 277 days of AWOL and received an Article 15 for 58 days of AWOL and a summary court-martial for 25 days of AWOL.  Upon his return to military control in January 1975, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and advised his unit commander that he desired to be discharged from the Army.  He also acknowledged he understood he could be furnished a UD Certificate.  He stated that he wanted to be discharged to go home and relieve his mother of some of her worries.  

4.  The applicant has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general discharge.





5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  In view of the foregoing, 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)                                         AR20100000066



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ABCMR Record of Proceedings (cont)                                         AR20100000066



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