IN THE CASE OF:	  

		BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120005955 


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 general discharge be upgraded to honorable.

2.  The applicant states:

	a.  He was stationed in Germany when his wife left, leaving behind his 2 1/2 year old daughter and he didn't know where she went.  He was instructed by his commander to take his daughter back to the states and try and find his wife.  He was put on leave and was assigned to the Military Entrance Processing Station (MEPS), Nashville, TN, while he tried to find his wife or be reassigned stateside.  After a month or so, the MEPS commander got a call from his unit commander saying he needed to be back in Germany in 24 hours.  He told his commander he would be back as soon as he found someone to take his daughter or as soon as he could find his wife.  

	b.  A week later, the Nashville police showed up at his door with military police (MP) from Fort Campbell, KY, to take him back to Germany.  The Nashville Police Department was able to locate his wife who took his daughter and he returned to Germany.  He was given a field grade Article 15 and the battalion commander dropped the charges due to the circumstances.  The next thing he knew, his commander was processing him out of the Army with a general discharge.  He had less than 2 years before he could have retired.  Up to that point, he had a clean record and was on the E-8 promotion list.



3.  The applicant provides no 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 records show he enlisted in the Regular Army (RA) on 5 December 1967 and he held military occupational specialty 63B (Light Wheel Vehicle Mechanic and 67U (CH-47 Helicopter Repairman).  He served in Vietnam from 8 July 1968 to 15 February 1970.

3.  He was discharged for the purpose of immediate reenlistment on 28 August 1975.  He completed 7 years, 5 months, and 24 days of net active service during this period of service.  

4.  He reenlisted in the RA on 29 August 1975.  He served through multiple reenlistments and/or extensions and attained the rank/grade of sergeant first class (SFC)/E-7 on 27 May 1982.  He was assigned to the 8th Aviation Battalion, 8th Infantry Division, Germany, on 22 September 1983 and he was assigned to the 8th Division Materiel Management Center (DMMC), 8th Infantry Division, Germany, on 9 August 1984.

5.  On an unknown date, he returned to the United States on leave.  On 11 October 1984, he was attached to the Nashville MEPS, Nashville, TN, per a Headquarters (HQ), Fort Sheridan, Fort Sheridan, IL, order, pending action on a request for a hardship discharge that the applicant applied for.  

6.  On 28 November 1984, his immediate commander requested assistance from HQ, Fort Sheridan and the Nashville MEPS in having the applicant returned to his command in Germany.  The commander stated the applicant's presence was 


required to respond to possible court-martial charges for failure to pay just debts and uttering worthless checks.  He further stated the applicant was in debt to the U.S. Government in excess of $4,000.00 and that local German authorities were also attempting to locate him.

7.  On 29 November 1984, HQs, Fort Sheridan, issued orders releasing the applicant from attachment to the Nashville MEPS effective 3 December 1984.  These orders stated he was required to report to his parent unit not later than 5 December 1984.

8.  On 5 December 1984, the American National Red Cross sent a message to his unit commander stating the applicant stated he would return to Germany if necessary but he could not give a date.  He had signed out of the Nashville MEPS on 3 December 1984, knew he was "in the hole" on leave, but requested to be put on leave status as there was no way he could return to Germany that soon.  He had court dates pending, had temporary custody of his 3 year old daughter, and had a 1 year lease on an apartment; all of which were preventing him from returning.  His wife's whereabouts were unknown and he could not legally return to Germany with his child.

9.  On 7 December 1984, the applicant called his unit commander and requested he be put on administrative leave due to the reasons stated above.  His commander stated it was imperative that he return to Germany because of the bad checks and if he did not return by 8 December 1984, he would be considered absent without leave (AWOL).  The applicant told the commander he would return.  However, he did not return and was subsequently reported AWOL from his assigned unit.

10.  On 19 December 1984, the commander received a phone call from the Chief, Family Housing, Mainz, Germany, concerning the applicant.  The commander stated the applicant was AWOL and the Chief, Family Housing stated the applicant had been seen recently in his Mainz quarters.  The commander obtained the housing number and relayed the information to the MPs.

11.  On 21 December 1984, the applicant was apprehended by military authorities and returned to military control.  His duty status was changed from AWOL to confinement - military authority.  On 1 January 1985, his duty status was changed from confinement - military authority to present for duty.



12.  On 13 February 1985, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for:

* being AWOL from 7 to 21 December 1984
* uttering 9 checks for a total of $4,015.00, for airline tickets, payment of a phone bill, and payment of a babysitter, and dishonorably failing to maintain sufficient funds for payment of such checks

13.  On 4 March 1985, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13 for unsatisfactory performance.  The commander stated the specific reasons were the Article 15 the applicant received, the 9 checks he wrote for $4,015.00 and failed to pay, and his being AWOL.  The commander further stated that if his recommendation was approved, the applicant could receive an honorable or general discharge.

14.  On 4 March 1985, he acknowledged receipt of the notification of his proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and the possible effects of a general discharge.  He was advised of the procedures and rights available to him.  He waived consideration of his case by a board of officers and did not submit a statement on his own behalf.

15.  On 7 March 1985, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and directed the issuance of a General Discharge Certificate.  On 22 March 1985, he was discharged accordingly.

16.  The DD Form 214 he was issued for this period of service confirms he was discharged in the rank of SFC under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with an under honorable conditions characterization of service.  He completed 9 years, 5 months, and 29 days of net active service during this period of service.  He completed a total of 16 years, 11 months, and 23 days of net active service with 25 days of time lost due to AWOL and confinement.

17.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.



18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

19.  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 is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, a senior noncommissioned officer, demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for being AWOL and uttering bad checks for over $4,000.00.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  He was more than 3 years away from completing 20 years for a retirement.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an 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)                                         AR20120005955





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ABCMR Record of Proceedings (cont)                                         AR20120005955



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