BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100018869 


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 his undesirable discharge (UD) be upgraded to a general discharge.  

2.  He states he believes the facts and circumstances of his leaving the Army warrant a less severe discharge.  While his failure to return to his unit in a timely manner was not excusable, the circumstances that occurred while he was home on leave from Germany included his own sickness from pneumonia and his wife’s chronic sickness from a brain aneurism which resulted in her death at 
21 years of age with 3 children, one of them 3 months of age.  His record up until the unfortunate incidents was a good one and he believes the facts were not revealed to the Army.  He truly regrets this and it had been his intention to continue in the Army.  He wishes to be able to continue with Department of Veterans Affairs (VA) medical care and benefits based on the service time that he served with honor.  He is requesting an upgrade of his second discharge to a general discharge.

3.  He provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 30 December 1966 and 12 May 1969
* VA Form 21-4138 (Statement in Support of Claim)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no requests, statements, or additional 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's military records show he enlisted in the Regular Army (RA) in pay grade E-1 on 9 November 1964, for 3 years.  He completed training and awarded military occupational specialty (MOS) 63C, Track Vehicle Mechanic.  

3.  He was honorably discharged in pay grade E-4 on 30 December 1966, for the purpose of immediate reenlistment.  He reenlisted in the RA on 31 December 1966 for 3 years.  He held MOS 11E, Armor Crewman.  He served in Germany from 8 June 1965 through 19 May 1968.

4.  He was reported absent without leave (AWOL) on 31 July 1967 and dropped from the rolls as a deserter on 30 August 1967.  He was apprehended by civilian authorities and returned to military control 17 September 1967.

5.  On 21 March 1968, he was convicted by special court-martial of two specifications each of AWOL from 31 July to 17 September 1967 and 30 October 1967 to 22 January 1968 and one specification of escaping from confinement.  He was sentenced to confinement at hard labor and a forfeiture of pay for 5 months each.  The sentence was approved and ordered duly executed on 22 March 1968.

6.  On 16 September 1968, he was convicted by special court-martial of one specification of AWOL from 19 April 1968 to 8 August 1968.  He was sentenced to confinement at hard labor and a forfeiture of pay for 6 months each.  The sentence was approved and ordered duly executed on 26 September 1968.

7.  He was again reported AWOL on 8 December 1968 and dropped from the rolls on 21 January 1969.  On 23 January 1969, his wife was notified in writing of his absence.  

8.  A DD Form 458 (Charge Sheet), dated 16 April 1969, shows he was charged with one specification of AWOL from 8 December 1968 to 3 April 1969.

9.  On 12 April 1969, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation to be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted 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 an 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 not to submit a statement in his own behalf.

10.  On 2 May 1969, the applicant’s company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, for the good of the service, with an UD.  

11.  On 12 May 1969, the appropriate separation authority approved his request and directed the issuance of an UD and reduction to pay grade E-1.

12.  He was discharged in pay grade E-1 on 12 May 1969, for the good of the service in lieu of trial by court-martial, and issued an UD.  He was credited with 7 months and 9 days of net service and 638 days of lost time.

13.  There is no evidence he requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.

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

15.  Army Regulation 635-200, then in effect, 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 included a punitive discharge may, at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An 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.

16.  Army Regulation 635-200, paragraph 3-7b, stated 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 may be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  The evidence shows he first enlisted in the RA on 9 November 1964.  He was honorably discharged for the purpose of reenlistment on 30 December 1966.  He reenlisted on 31 December 1966.

2.  The evidence also shows on 21 March 1968 he was convicted by court-martial of two periods of AWOL and escaping from confinement and sentence to confinement.  He was again convicted by court-martial in September 1968 of AWOL and sentenced to confinement.  He again departed AWOL on 8 December 1968.  Upon his return to military control on 19 April 1969, 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 an UD Certificate.

3.  He 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.  No evidence shows any medical conditions (his or his wife’s) or unavoidable circumstances prevented him from completing his second enlistment.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or honorable discharge.

4.  Without evidence, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  His desire to have his UD upgraded so that he can qualify for medical and/or other benefits administered by the VA.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

6.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100018869





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ABCMR Record of Proceedings (cont)                                         AR20100018869



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