IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100009046 


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, in effect, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he served in military occupational specialty (MOS) 12A1O (Engineer) at Fort Leonard Wood, MO.  He adds his lower back started giving him trouble, which made it hard for him to march and perform his duties.

   a.  He states he was assigned to Germany.  One morning at formation he blacked out and took a hard fall.  He woke up in a hospital in Frankfurt, Germany, but couldn't remember things.

   b.  He states he was a good Soldier up until then, but after that his memory wasn't as good.  He adds he still has trouble with his head, back, and legs.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his request.

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 (RA) for a period of 3 years on 
7 February 1969.  Upon completion of training he was awarded MOS 12A (Pioneer).

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably discharged at Schwetzingen, Germany, on 20 November 1969, to immediately reenlist in the RA.  At the time he had completed 9 months and 14 days of net active service this period and
3 months and 20 days of foreign service.

4.  He reenlisted in the RA for a period of 3 years on 21 November 1969.

5.  The applicant was assigned to the U.S. Army Overseas Replacement Station, Fort Lewis, WA, with a reporting date of 18 January 1970 to Vietnam.

6.  On 28 June 1974, charges were preferred against the applicant under Article 86, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 18 January 1970 to 21 May 1974.

7.  On 1 July 1974, 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 and provided an Undesirable Discharge Certificate; 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 if he were issued an Undesirable Discharge Certificate.

   b.  He was advised that he may submit statements in his own behalf which would accompany his request for discharge.

8.  A DA Form 3622-R (Report of Mental Status Evaluation), dated 2 July 1974, shows the applicant was evaluated by a medical doctor who indicated the applicant's behavior was normal, he was fully alert and oriented, his thinking process was clear, thought process normal, and his memory was good.  It was the doctor's impression that the applicant had no significant mental illness.

9.  On 10 July 1974, the applicant submitted a statement in his own behalf.  He stated, "I want out of the Army because of problems I have and can not solve in the Army.  I have bills to pay and no money to do it with while I am here.  I have a family of 4 and I have to support them.  I want out as soon as possible.  I don't like the Army and [want] nothing to do with it."

10.  On 15 July 1974, the immediate commander recommended disapproval of the applicant's request for discharge and recommended that his case be referred for trial by general court-martial.

11.  On 11 November 1974, the Commanding General, U.S. Army Administration Center, Fort Benjamin Harrison, IN, waived prosecution for all charges pending against the applicant, other than the AWOL during the period prescribed by the Presidential Clemency Program.

12.  On 14 November 1974, the applicant consulted with counsel and voluntarily requested a discharge for the good of the service under the provisions of Presidential Proclamation Number 4313, dated 16 September 1974.  He acknowledged that his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial.  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 if he were issued an undesirable discharge.

   b.  He acknowledged that he understood that within 15 days of his discharge he was required to report to his State Director of Selective Service to arrange for the performance of alternate service.

   c.  Based on consultation with counsel, the applicant indicated with his initials and signature that he desired to sign a Reaffirmation of Allegiance, a Pledge of Public Service, and accept an Undesirable Discharge.
   
   d.  The applicant submitted a statement to the Alternate Service Board for their consideration in determining the number of months of alternate service he must serve.  The reason he provided for his absence from military service was,  "I left because I didn't want to go to Vietnam because when I return [sic] home my father was sick and he is a farmer so I had to take over to help support my family.  Now he is able to get around so I turn [sic] myself in."

   e.  The applicant signed his Reaffirmation of Allegiance and Pledge to complete alternate service on 14 November 1974 and it was witnessed by his legal counsel.

13.  The Joint Alternate Service Board established by Presidential Proclamation Number 4313, on 16 September 1974, reviewed the applicant's official records and determined he would be required to serve 22 months of alternate service.

14.  A Standard Form (SF) 93 (Report of Medical History), dated 14 November 1974, shows in:

   a. Item 8 (Statement of Examinee's Present Health and Medications Currently Used) the applicant wrote, "I am in good health and taking no medication" and he placed his signature in the item.

   b.  Item 11 (Have You Ever Had or Have You Now) shows in the block for "Recurrent back pain" the applicant placed a checkmark in the "No" column and he also signed the document.

15.  An SF 88 (Report of Medical Examination), dated 14 November 1974, shows in:

   a.  The Clinical Evaluation section, item 38 (Spine, Other Musculoskeletal), the examining doctor placed a mark in the "Normal" column.
   
   b.  Item 73 (Notes and Significant or Interval History) the applicant wrote, "I am in good health and taking no medication" and placed his signature in the item.
   
   c.  Item 74 (Summary of Defects and Diagnoses) shows the entry "None."


   d.  Item 77 the doctor placed an "X" in the block for "Is Qualified For" and entered the stamp-mark "REFRAD [Release From Active Duty]."

16.  Headquarters, U.S. Army Administration Center and Fort Benjamin Harrison, IN, Special Orders Number 234, discharged the applicant on 14 November 1974 based upon Special Presidential Proclamation Number 4313 and Department of Defense, memorandum, subject:  Implementation of Presidential Proclamation Number 4313.

17.  The applicant's DD Form 214 shows he was discharged on 14 November 1974, in accordance with Special Presidential Proclamation and Department of Defense memorandum, with service characterized as under other than honorable conditions.  At the time he had completed 2 months and 26 days of net active service this period; 9 months and 14 days of prior active service; and he had 1,693 days of lost time.

18.  National Headquarters, Selective Service System, Washington, DC, letter, dated 8 August 1975, subject:  Termination from Reconciliation Service Program, shows the applicant did not complete his required period of alternate service, he signed a statement declining to participate in the program, and the Director terminated him from enrollment in the Reconciliation Service Program.

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

20.  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.

21.  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 an individual who was discharged for the good of the service.
22.  Army Regulation 635-200 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.

23.  Army Regulation 635-200 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 contends his undesirable discharge should be upgraded to an honorable discharge because he was a good Soldier up until he fell and hit his head and his memory was no longer as good as it had been.

2.  Records show the applicant underwent a mental status evaluation subsequent to the incident in question and shortly before his discharge.  It was found that his thinking process was clear, thought process normal, and his memory was good.  In addition, the doctor's impression was that the applicant had no significant mental illness.  Furthermore, the applicant was found qualified for separation. Thus, the evidence of record does not support the applicant's contention.

3.  The applicant's request for separation under the provisions of Presidential Proclamation Number 4313 for the good of the service 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.  In addition, the offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  The evidence shows the applicant was AWOL for a total of 1,693 days
(i.e., more than 4 years and 9 months) during the period of service under review and he completed less than 3 months of his 3-year reenlistment commitment.  In addition, the applicant failed to complete his required period of alternate service in the Reconciliation Service Program [emphasis added].

   a.  Thus, the evidence of record clearly shows the applicant's record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

   b.  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 discharge or an honorable discharge.

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)                                         AR20100009046



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ABCMR Record of Proceedings (cont)                                         AR20100009046



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