IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100000953 


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 upgrade of his under other than honorable conditions discharge to at least a general discharge.  He also requests a personal appearance before the Board and he will attend if one is scheduled.

2.  The applicant states, in a three-page statement, that he does not contest any of the facts and charges against him during his period of active duty; however, it was an avalanche of family concerns, work pressure, and personality conflicts with his superiors in 1976 that conspired to destroy his military career.  He goes on to state that he had very little education when he joined the Army with parental consent at the age of 17.  He advanced to the pay grade of E-4 while still 17 years of age and by the age of 19, he had met and married a Korean girl while stationed in Korea, to whom he is still married and has had several children with.  He also states that he obtained his General Educational Development (GED) in Georgia in 1975 and was promoted to the pay grade of E-5 the same year.  He continues by stating that he was doing well until 1976 when a new commander who did not like people married to Korean Nationals came in and began to make his life difficult.  He states that he resorted to alcohol to absorb his anger but it did not work.  Then the commander transferred him away from his family and he began to drink too much and the troubles began.  He further states that he has been a model citizen since his discharge and he has raised a wonderful family with the same wife he married in 1973.  Furthermore, he filed for an upgrade of his discharge in 1979 but he failed to attend the hearing because he did not believe he would receive a fair and impartial hearing; however, after 


reviewing the case summary, it appears that some members of that board believed that he had mitigating circumstances and he believes that had he appeared, he may have received an upgrade of his discharge.

3.  The applicant provides a three-page letter explaining his application and numerous copies of documents from his official military personnel and health records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel submits the applicant's application, DD Form 214 (Report of Separation from Active Duty) for the period ending 30 June 1977, a Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) appointing The American Legion as counsel, and
111 pages of supporting documentation.  Counsel does not provide any additional request, statement, or evidence.

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 with parental consent in Roanoke, VA on 8 March 1971 for a period of 3 years under the airborne training option.  He completed his basic training at Fort Campbell, KY and his advanced individual training as a light weapons infantryman at Fort Polk, LA before being transferred to Fort Benning, GA for airborne training.

3.  It appears that he did not complete his airborne training because there is no evidence of his being awarded a parachutist badge or a special qualification identifier (SQI) showing he was airborne qualified.  However, he was transferred to Korea on 10 September 1971 and he was assigned to a HERCULES battery 


as a power generator operator/mechanic.  He was advanced to the pay grade of E-4 on 17 November 1971.

4.  On 4 July 1972, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 5 July 1972 for a period of 6 years and reclassification to military occupational specialty 52B (Power Generator Equipment Operator/Mechanic).

5.  He departed Korea on 5 July 1972 and he was transferred to Fort Gordon, GA.  Between April and November 1973, nonjudicial punishment (NJP) was imposed against him on two occasions for disobeying lawful orders from superior noncommissioned officers (NCOs).  His commander imposed a local bar to reenlistment against him on 8 February 1974 and on 13 January 1975, the commander removed the bar.  He was promoted to the pay grade of E-5 on 4 April 1975.

6.  He was transferred to Korea on 19 November 1975 and he was again assigned to a HERCULES battery as a power generator equipment operator/mechanic.  He was on an unaccompanied tour and it appears that he brought his wife to Korea at his own expense.

7.  During the period August to December 1976, NJP was imposed against him on three occasions for being disrespectful in language towards a superior commissioned officer (two offenses) and for failing to go at the time prescribed to his appointed place of duty. 

8.  On 23 August 1976, the applicant was rehabilitatively transferred to another HERCULES battery and he remained assigned to that battery until he departed Korea on 16 December 1976 for assignment to Fort Belvoir, VA.  His report date to Fort Belvoir was 28 January 1977; however, he failed to report.  As a result, he was reported absent without leave (AWOL) until his return to military control on 2 February 1977.

9.  The applicant again went AWOL from 4 February to 2 March 1977 and again on 8 March 1977 until he was apprehended by civil authorities on 23 May 1977 at which time he was transferred to military control at Fort Dix, NJ, where charges were preferred against him for the three AWOL offenses.  At the time of his return to military control he indicated that he went AWOL because he decided that he could make more money on the outside so that he could bring his wife back from Korea and that he wanted to be discharged.


10.  On 14 June 1977, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone, and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive an under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.

11.  The appropriate authority (a major general) approved his request on 21 June 1977 and directed that he be discharged with an Under Other Than Honorable Conditions Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions while on excess leave, on 30 June 1977, under the provisions of Army Regulation  635-200, chapter 10, for the good for the good of the service - in lieu of trial by court-martial.  He had served 4 years, 8 months, and 6 days of active service during his current enlistment and he had 110 days of time lost due to AWOL.  He had 6 years and 3 days of total active service.

13.  A review of the available records fails to show that the applicant ever sought the assistance of his chain of command or that he ever surfaced his alleged problems to his chain of command.  There is no evidence that he ever applied for a hardship discharge or compassionate reassignment as well.

14.  On 20 February 1979, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he had so many family problems that he was unable to carry on his job properly and he was unable to get any help or advice and could not handle the situation as well as he should have.  He was granted a personal appearance before that board in Washington, D.C. on 2 June 1980 and he failed to appear as scheduled.  In lieu of a personal appearance hearing a records review was conducted and the ADRB determined in a majority vote that his discharge was both proper and equitable under the circumstances.  The minority voted to grant partial relief because they believed that his family problems may have served to mitigate the offenses for which he was charged.  However, based on the majority vote, the ADRB denied his request on 27 June 1980.

15.  Army Regulation 635-200 sets forth the basic authority for the 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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.

17.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It provides, in pertinent part, that applicant’s do not have a right to a hearing before the ABCMR.  The director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him. 

4.  The applicant’s contentions were noted; however, they are not sufficiently mitigating to warrant relief under the circumstances.  While he may have been experiencing personal problems at the time, there is no evidence to show that he 


made any attempt to seek assistance from his chain of command to resolve his problems or at least offer an explanation at the time to adequately explain his absence and misconduct.

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)                                         AR20100000953



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)