IN THE CASE OF:	  

		BOARD DATE:	    15 May 2012

		DOCKET NUMBER:  AR20110022449 


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 an upgrade of his undesirable discharge.

2.  He states he enlisted because he had two grandfathers who retired from the U.S. Army whom he admired very much.

   a.  His foot was injured in a motor vehicle accident after he got his jump wings.  While he was at the hospital he saw a young man brought into the hospital who was injured after a jump malfunction.  This haunted him so he applied for a new military occupational specialty (MOS).  This required a 4-year service commitment and he reenlisted to add 4 years to his already served time.  He was prepared to depart on leave prior to the new MOS training when he was informed he must complete a night parachute jump.  As an alternative to completing the jump, he went absent without leave (AWOL).  He was court-martialed and sentenced.  He served his sentence, paid his fine, and volunteered to serve in Vietnam.
   
   b.  Upon his return home from Vietnam he got married and was stationed at Fort Sill, OK.  His wife did not like it there.  When he inquired to verify his remaining service obligation a clerk told him that based upon the temporary records (he had been told that his permanent records had apparently been lost prior to going to Vietnam) he had more than 4 years remaining instead of the approximately 2 years that he had estimated.  He then went AWOL and took his wife home.  Due to his misfortunes with the military he accepted the chapter 10 discharge offered to him.
   
   c.  Since his discharge he has been living a clean life.  He is a sworn licensed Merchant Marine officer (Master Captain) under the command of the U.S. Coast Guard.    

3.  He provides:

* Four Certificates of Achievement from the Business and Industry Services Lee County Public Schools for training completed
* Recognition for volunteer donations of a total of three gallons of blood
* Lee County Emergency Management Certificate of Achievement
* Lee County letter confirming employment
* Merchant Marines Personnel Physician's Report of Results of Chemical Tests for Dangerous Drugs
* newspaper articles related to his work
* U.S. Coast Guard U.S. Merchant Marine Officer License
* Transportation Security Administration letter
* Lee County Length of Service recognition documents
* Department of Veterans Affairs (VA) certificate of eligibility for loan guaranty benefits
* Lee County Employee Performance Evaluation documents

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.  His military records show he enlisted in the Regular Army on 19 March 1968 for a period of 3 years.  He was awarded the MOS of 63B (Wheeled Vehicle Mechanic).

3.  His records show he reenlisted on 5 December 1968 for a period of 4 years.  The highest rank/grade he held was specialist four/E-4.

4.  A DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) Record of Court-Martial Conviction) shows, on 25 February 1969, he was convicted by a summary court-martial of being AWOL from on or about 20 December 1968 to on or about 4 February 1969.

5.  He accepted nonjudicial punishment (NJP) on 29 June 1970 for being absent from his place of duty.

6.  On 28 July 1970, pursuant to his guilty plea, he was convicted by a summary court-martial of being AWOL from on or about 2 July 1970 to on or about 20 July 1970.

7.  His DA Form 20 shows he was AWOL from on or about 5 August 1970 to on or about 2 September 1970. 

8.  On 20 October 1970, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.

	a.  He further acknowledged he understood that if his discharge request were accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He chose not to submit a statement on his own behalf.

   b.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with counsel for consultation and was advised of the basis for his contemplated trial by court-martial under the circumstances which could lead to a bad-conduct or dishonorable discharge, of the effects of his request for discharge, and the rights available to him.  He waived his rights in conjunction with this consultation.

9.  On 2 November 1970, he was discharged under provisions of chapter 10, Army Regulation 635-200, for the good of the service, with his service characterized as under other than honorable conditions.  He completed a total 2 years, 4 months, and 15 days of net active service.  The DD Form 214 he was issued shows he had 88 days of time lost.

10.  On 9 June 1972, the Army Discharge Review Board denied the applicant's request to upgrade his undesirable discharge.  On 22 December 1983, his appeal of this decision was denied.

11.  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 VA 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.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  He received NJP for being absent from his place of duty.  He was twice convicted by summary court-martial for periods of being AWOL.  He had a total of 88 days of time lost.  Therefore, his service was unsatisfactory.

2.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  While the applicant's good post-service conduct, service in the community, his steady employment history, and achievements are commendable, none of these factors, either individually or in sum, is so meritorious as to warrant the relief requested.

5.  In view of the foregoing, there is an insufficient basis for upgrading his discharge to an honorable or a general 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)                                         AR20110022449



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ABCMR Record of Proceedings (cont)                                         AR20110022449



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