IN THE CASE OF:	  

		BOARD DATE:	    14 August 2012

		DOCKET NUMBER:  AR20120002639 


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 an honorable discharge.

2.  The applicant states:

   a.  The circumstances of his case were not considered and the discharge he received was more severe than it needed to be.  In the interest of justice he is requesting his discharge be reconsidered. 
   
   b.  He was afraid and had no guidance or counsel on the best decision to make at the time of his discharge in 1975.  He was 21 years of age and married to his young wife who didn't want him to be in the Army because she thought there wasn't enough money to spend.  They lived off post and his wife would frequently write hot checks and the local merchants would contact his company commander's office and complain.  This got him in trouble on more than one occasion.
   
   c.  He was torn between what he thought were his obligations to his wife and to the Army.  Because of this turmoil, he couldn't be a good Soldier or a good husband.  His wife left him and he returned home on leave.  He didn't care anymore about what would happen to him and he didn't return to his post.  He was picked up and taken to Fort Hood, TX, and treated in a very hardcore manner.  He had no guidance at that time, so he requested to be discharged rather than face a court-martial and this is the discharge he received.
   
   d.  He is now 58 years of age, remarried, and has raised and put two fine children through college.  His ex-wife of his youth has passed away and all that remains of that great mistake he made is the UD that he received.  It was the foolishness of his youth that caused him to make that great mistake.  He is sorry for his conduct and what he did.

3.  The applicant provides:

* Discharge orders
* DD Form 214 (Report of Separation from Active Duty)
* Army Discharge Review Board (ADRB) memorandum
* two character reference letters

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) on 12 November 1974.  On the date of his enlistment in the RA, he was 21 years and 1 month of age.  He completed training and he was awarded military occupational specialty 62M (Rough Terrain Forklift and Loader Operator).  He was advanced to pay grade E-3 on 9 June 1975.

3.  He was reported absent without leave (AWOL) on 13 September 1975 and dropped from the rolls of his organization on 13 October 1975.

4.  A DD Form 458 (Charge Sheet), dated 20 November 1975, was prepared by the Commander, Personnel Control Facility, Fort Hood, TX, showing he was charged with one specification of being AWOL from 13 September 1975 to on or about 11 November 1975.

5.  On 21 November 1975, after consulting with counsel, he voluntarily requested 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 coerced with respect to his request for discharge.  He also acknowledged that although he was furnished legal advice, the decision was his own.  He further acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge 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 (VA).  He waived his rights and elected to submit a statement in his own behalf.  

6.  In the applicant's statement, he stated that he went AWOL because the Army broke up his marriage.  He talked to his company commander about being discharged from the Army, but his company commander wasn't helping fast enough.  He saw that people who went AWOL were discharged fast.  One week before he was picked up he had just gotten back together with his wife.

7.  On 26 November 1975, the applicant's company commander recommended approval of the applicant's discharge with the issuance of a UD.  The company commander stated that the applicant had been personally interviewed and it was felt that rehabilitation would not be in the best interest of the applicant or the Army.

8.  On 26 November 1975, the appropriate separation authority approved the applicant's request for discharge for the good of the service and directed that he be issued a UD Certificate and reduced to pay grade E-1.

9.  On 29 December 1975, he was discharged in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and issued a UD.  He was credited with completing 11 months and 19 days of active service with 59 days of time lost.

10.  On 29 December 1975, the applicant's command advised him of the procedures for a review of his discharge.

11.  He provided two character reference letters wherein the individuals stated their support of his request for an upgrade of his discharge.  The individuals also attested to the applicant being an exceptional family man and a productive part of society.  

12.  There is no indication he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.
13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after the charges have been preferred.  A UD was normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

15.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the RA on 12 November 1974 and served without incident until September 1975.  He departed AWOL on 13 September 1975.  Upon receipt of the court-martial charges 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.  

2.  At the time, he also acknowledged that he had not been coerced with respect to his request for discharge and although he received legal advice this was his own decision.  He further acknowledged that he understood he could be furnished an UD.  In a written statement he indicated that he left his unit in an AWOL status because he wanted to save his marriage.  His company commander felt the applicant's discharge would be in best interest of the applicant and the Army.

3.  His contention that his youth made him behave foolishly and impacted his ability to serve successfully is without merit.  He was 21 years and 1 month of age when he enlisted in the RA.  He was 21 years and 11 months of age when he went AWOL and 22 years of age when he was returned to military control.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

4.  He provided no sufficient 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.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

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

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)                                         AR20120002639





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ABCMR Record of Proceedings (cont)                                         AR20120002639



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