BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110019387 


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 undesirable discharge to a general discharge.

2.  The applicant states:

	a.  he enlisted in the Army after he graduated from high school.  He completed basic and advanced individual training but he quit jump school because he injured his wrists.  He reenlisted to go to Vietnam.  After 9 months in Vietnam he was sent home on emergency leave because his father died.  He was never sent back to Vietnam; he received orders to go to Fort Sill, OK.

	b.  all his problems began at this station.  His main problem was with a sergeant first class (SFC) who wanted to be "set up" with the applicant's wife.  The SFC continued to harass him about his wife and his wife left and went home.  She eventually wanted a divorce and he requested leave to go home to talk to her but his request was denied.  He started thinking the Army cared very little for him or his family so he decided to go absent without leave (AWOL).

	c.  he turned himself in and he was going to be court-martialed.  He requested a discharge for the good of the service.  His unit commander approved his request and recommended he receive a general discharge but the intermediate commander recommended disapproval of his request.  He had an appointment with his commanding officer who made it clear he was not going to approve his 


request and offered him a deal.  The commanding officer would drop the court-martial charges to an Article 15, get him out of confinement, and transfer him to a different unit.  All parts of the agreement were kept except one, he was sent back to his old unit.  He was informed by his sergeant that he had a conversation with the SFC and as far as he was concerned the applicant's career in the Army was going nowhere no matter how hard he tried or what he did.  So, he went AWOL again.  He felt like he had no other choice.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 on 1 August 1967 for a period of 
3 years.  He completed his training and he was awarded military occupational specialty 64A (light vehicle driver).  On 13 June 1968, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 14 June 1968 for a period of 6 years.  He served in Vietnam from 28 July 1968 to 27 June 1969.

3.  On 10 February 1970, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for being AWOL from 10 February 1970 to 18 February 1970.

4.  On 22 May 1970, charges were preferred against the applicant for three specifications of being AWOL (from 5 May 1970 to 9 May 1970, 9 May 1970 to 10 May 1970, and 13 May 1970 to 20 May 1970.  Trial by special court-martial was recommended.


5.  The applicant requested 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.  His unit commander recommended approval of his request with a general discharge.  However, the intermediate commander recommended disapproval of his request.  As a result, on 16 July 1970, the court-martial charges were withdrawn and it was determined he would be administered an Article 15 for the AWOL offenses.

6.  On 18 July 1970, he again departed his unit in an AWOL status.  On 30 July 1970, he was convicted by a special court-martial of being AWOL from 18 July 1970 to 24 July 1970.  He was sentenced to confinement at hard labor for
30 days and a forfeiture of $50.00 pay per month for 2 months.  On 11 August 1970, the convening authority approved the sentence. 

7.  On 15 September 1970, he was convicted by a special court-martial of escaping from custody and two specifications of being AWOL from 4 August 1970 to 16 August 1970 and from 16 August 1970 to 3 September 1970.  He was sentenced to confinement at hard labor for 3 months and forfeiture of $80.00 pay per month for 6 months.  On 18 September 1970, the convening authority approved the sentence but suspended the forfeiture of pay for 6 months.

8.  The specific facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, on 3 November 1970, the separation authority approved a recommendation for separation under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge - Unfitness and Unsuitability), for unfitness and directed the applicant be provided an undesirable discharge.

9.  On 6 November 1970, he was discharged accordingly.  The separation program number (SPN) shown on his DD Form 214 is "386" (an established pattern for shirking).  He served 2 years, 10 months, and 20 days of total active service with 135 days of time lost.

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

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability and unfitness.  Paragraph 6a(4) of the regulation provided that members involved in an established pattern of shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.


12.  Army Regulation 635-200 (Personnel Separations – 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.  Evidence shows three AWOL charges were preferred against the applicant and he requested discharge for the good of the service.  However, the court-martial charges were withdrawn in July 1970 and it was determined he would be punished by NJP.

2.  He subsequently went AWOL again and received two special court-martial convictions for being AWOL and escaping from custody.  Although the facts and circumstances surrounding his discharge are not contained in the available records, his DD Form 214 shows he was discharged for unfitness.

3.  It appears his separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.

4.  In view of the foregoing, this is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110019387



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ABCMR Record of Proceedings (cont)                                         AR20110019387



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