IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100011845 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect:

* his reenlistment contract was for state side duty
* the Army broke his contract by issuing him orders for Germany and he refused to go because his contract was broken
* he was told he could either go home or go overseas 

 3.  The applicant provides:

* a three-page document, self-authored statement
* a DD Form 214, (Report of Separation from Active Duty), for the period 
30 June 1971 through 16 May 1974
* his previous honorable discharge
* three Letters of Commendation 
* One Army Commendation Medal Citation and Certificate
* One Certificate of Merit

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’s records show he enlisted in the Regular Army on 30 June 1971.  He received above average Enlisted Evaluation Reports, an Army Commendation Medal, a Good Conduct Medal, and several letters of commendation.  The highest rank he attained was specialist five/E-5.

3.  The applicant’s records show he reenlisted in the Regular Army on 17 May 1974.  Item 48 of the enlistment contract shows he reenlisted for service in the Continental United States (CONUS) with a station of choice (Fort Campbell, KY).  Paragraph 1f of his DA Form 3286 (Statements for Enlistment) shows that he acknowledged that his choice of initial enlistment option did not constitute any guarantee that a substantial part of his enlistment would be served in that option, and the needs of the service could result in his transfer at any time to any other assignment within the continental United States or to an overseas command.

4.  The applicant’s Permanent Change of Duty Station (PCS) orders show he was reassigned to Germany with a reporting date of 18 February 1976.

5.  On 10 September 1976, charges were preferred against the applicant for being absent without leave (AWOL) for 199 days. 

6.  On 10 September 1976, the applicant consulted with legal counsel and was advised of the basis for contemplated trial by court martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 

7.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State Laws.

8.  The applicant provides a personal statement which indicates:

* he went AWOL because he was having problems with his wife
* he was separated from his wife because she refused to travel overseas
* his wife had been to Germany once and would not go again
* he had a 19 month old girl and he was trying to get a divorce
* with everything on his mind and work his attitude worsened
* he considered going AWOL in his first assignment to Germany because of the workload
* a discharge would benefit him so he could be close to his family and get his marriage back together again

9.  On 13 September 1976, the unit commander recommended approval of the applicant's request for discharge for the good of the service.  On 13 September 1976, the battalion commander endorsed approval of the applicant's request for discharge for the good of the service.  

10.  On 17 September 1976, the separation authority approved the applicant's request for discharge and directed that he be issued an under other than honorable conditions discharge.  On 24 September 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 1 year, 9 months, and 21 days of creditable active service.

11.  In a self-authored statement provided with the application the applicant states:

* he served his first tour of duty with exceptional service
* he would not have given up service time if he could have served in the U.S. as agreed
* he went on leave from Fort Campbell, KY and reported to New Jersey to return military equipment; he returned home and stayed 70 or 80 days
* he was instructed by a Judge Advocate General (JAG) lawyer to return to Fort Knox, KY
* he tried everything he could to get out of going overseas; he talked to his commander, his Reenlistment NCO, and a JAG lawyer at Fort Campbell
* he was told to go overseas and then file a complaint against the Army
* he reenlisted so he could go to college and his agreement was for state side duty
* the Army broke his contract by issuing orders to send him back overseas

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 Under Other Than Honorable Conditions Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

13.  Army Regulation 635-200, paragraph 3-7a, 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 otherwise so meritorious than any characterization would be clearly in appropriate.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support this request.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  

3.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and that he voluntarily requested discharge in lieu of trial by court-martial.
4.  The applicant entered a second contract with the Army which clearly stated his place of duty would be CONUS and the Army subsequently ordered him to report to Germany.  The DA Form 3286 that he completed for that enlistment clearly indicated that he acknowledged that his choice of initial enlistment option did not constitute any guarantee that a substantial part of his enlistment would be served in that option, and the needs of the service could result in his transfer at any time to any other assignment within the continental United States or to an overseas command.

5.  Based on the foregoing, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or 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)                                         AR20100011845



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ABCMR Record of Proceedings (cont)                                         AR20100011845



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