DOCKET NUMBER:  AR20120008621 


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 be upgraded to a general discharge.  

2.  The applicant states:

	a.  He was stationed at Fort Ord, CA, and he was assigned to range control.  He did a good job and his commander requested that he be assigned as a permanent party member, but the request was denied and he was given orders for supply school.  His problem was that he could not retain numbers and he had this problem at the aircraft maintenance school at Fort Eustis, VA.  The school involved many forms with numbers and parts numbers.  He began drinking beer while off duty to help deal with the dilemma he was faced with as he knew he could not pass the school.

	b.  One night at the enlisted club, a sergeant (SGT) grabbed him from behind and escorted him out.  He felt the SGT was out of line and he dropped his cigarettes as he got to the front door.  He was allowed to retrieve them but as he turned the swinging doors slammed into him, knocked him to the ground, and injured his arm.  He spent the next 3 to 4 months recovering from his injury and major surgery where Army doctors reconstructed his arm.  After the surgery, he could move only three fingers and he was told he was going to receive a permanent profile.  He asked to be discharged for medical reasons as he was no longer able to use his arm.

	c.  Instead, he was given new orders for advanced infantry training in military occupational specialty 11B (Light Weapons Infantryman) and he was going to be shipped to Vietnam upon completion of his training.  When he got to the unit, his first sergeant (1SG) asked what he was doing there and if he had seen his profile.  He responded that he did not know why he was there and he had seen the profile.

	d.  The 1SG said he had done some checking and in his opinion it seemed like someone was trying to get the applicant killed.  He told the applicant to go back to the barracks, pack his belongings, leave for 15 days, and then turn himself in to the 1SG.  The 1SG would give him an Article 15 and restrict him to the barracks.  The applicant was then to go back to the barracks, pack his belongings, leave for 30 days, and then turn himself in to the 1SG.  The 1SG would put him in for a general discharge under honorable conditions so he would retain his benefits.

	e.  He was doing as the 1SG instructed but he made a bad decision one night.  He was with another service member and they caught a ride with an individual who had car trouble.  He was adding water to the car radiator when the service member he was with tied up the owner of the car, pulled out a knife, and said he was taking the car.  He untied the owner and told him to hide then he left in the car with the other service member.  The police caught them; he was put on probation and then returned to Fort Ord, CA.

	f.  After a court hearing, he received an undesirable discharge and was put out of the service with no benefits.  He should have been given a medical discharge as he was no longer able to perform his duties due to his injury.  It is his hope that his discharge will be upgraded so he can receive additional medical treatment by the Department of Veterans Affairs (VA).

3.  The applicant provides:

* his DD Form  214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 20 (Enlisted Qualification Record)
* DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* Orders
* two Standard Forms 88 (Report of Medical Examination)
* Standard Form 89 (Report of Medical History)
* Standard Form 600 (Chronological Record of Medical Care)
* Standard Form 601 (Immunization Record)
* Standard Form 603 (Health Record - Dental)

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 on 21 May 1970.  He completed basic combat training and was assigned to the 3rd School Battalion, Transportation School Brigade, Fort Eustis, VA, for advanced individual training (AIT).

3.  On or about 4 September 1970, he was reported absent without leave (AWOL) from his assigned unit and on 10 September 1970 he was dropped from the rolls (DFR).

4.  On 24 September 1970, he was returned to military control at Fort Ord, CA.

5.  On 15 October 1970, he was convicted by a summary court-martial of one specification of being AWOL from 4 to 24 September 1970.  He was sentenced to restriction for 60 days and a forfeiture of $83.00 pay for 1 month.

6.  He was assigned to the 4th Battalion, 2nd Brigade, Fort Ord, CA, for 11B AIT with a report date of 2 November 1970.

7.  On 1 November 1970, he was reported AWOL from his assigned unit and on 30 November 1970, he was DFR.

8.  On or about 8 December 1970, he was returned to military control at Fort Ord, CA, and assigned to the 4th Battalion, 2nd Brigade.

9.  On an unknown date, he was assigned to the Medical Holding Company, Fort Ord, CA.

10.  On 23 February 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being drunk and disorderly on 14 February 1971.

11.  On 22 March 1971, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from 20 to 21 March 1971.

12.  On 28 May 1971, he was assigned to the 4th Battalion, 4th Brigade, Fort Ord, CA, for 76A (Supplyman) AIT.

13.  On 6 July 1971, he was reported AWOL from his assigned unit and on 23 July 1971, he was returned to military control at Fort Ord, CA.

14.  On 24 September 1971, he was reported AWOL from his assigned unit and on 19 November 1971, he was returned to military control at Fort Ord, CA.

15.  On 24 November 1971, court-martial charges were preferred against him for one specification each of being AWOL from 6 to 23 July 1971 and from 24 September to 19 November 1971.

16.  On 29 November 1971, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.

17.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

18.  In a statement he submitted on his own behalf, he stated he enlisted on 26 May 1970 for 3 years, had 15 months of good time, and 3 and 1/2 months of bad time.  He had three Article 15's for being drunk and AWOL.  He also had a summary court-martial for being AWOL.  He was now pending charges for being AWOL for approximately 2 months.  He further stated that during his last period of AWOL he was convicted of grand automobile theft in Canyon City, OR, and if he was not discharged at this time, he would go AWOL again.

19.  On 1 December 1971, he underwent a medical examination in conjunction with his request for a discharge.  The examining physician noted the applicant was in good health and he had a 4 inch scar on his left forearm from a lacerated a tendon in his left forearm about 1 year prior.  He made a good recovery after corrective surgery and with limited flexion in his left wrist when making a fist.  An orthopedic consultation was cancelled at the applicant's request.  He was given a physical profile of "1" in all categories except for "2" for his eyes (20/30 vision in the left eye) and was found to be medically qualified for release from active duty.

20.  On 17 December 1971, his immediate commander recommended approval of his request for a discharge with an Undesirable Discharge Certificate.  The commander stated the applicant's pattern of behavior indicated retention was neither practical nor desirable.

21.  On 17 December 1971 and 12 January 1972 respectively, his intermediate and senior commander recommended approval of his request for a discharge with an Undesirable Discharge Certificate.  

22.  On 17 January 1972, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Undesirable Discharge Certificate.  On 18 January 1972, he was discharged accordingly. 

23.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions characterization of service.  He completed 1 year, 3 months, and 16 days of net active service with 132 days of time lost due to being AWOL and in confinement.

24.  There is no evidence in the applicant's available record that shows he ever incurred any disabling injury while serving on active duty that required referral to a medical evaluation board (MEB) and/or a medical discharge. 

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

26.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

27.  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.

28.  Army Regulation 635-200, 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.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The applicant contends his 1SG told him to go AWOL and he was just following instructions.  However, there is no evidence in his records and he has not submitted any evidence that supports this contention.  His record of service shows he was convicted by a summary court-martial of being AWOL; he received an NJP on two occasions for being AWOL and an NJP for being drunk and disorderly.  In addition, he was charged with being AWOL during two additional periods of time for a total of almost 60 days when he submitted his request for discharge in lieu of trial by court-martial.  At that time, he stated if he was not discharged he would go AWOL again.

4.  There is no evidence in the applicant's available record and he has not provided any evidence that shows he ever incurred any disabling injury while serving on active duty that required referral to an MEB or a medical discharge.  Although he received a laceration to his left forearm and he had some limited flexion in his left wrist, he never received a permanent profile and was medically cleared for release from active duty on 1 December 1971.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled 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)                                         AR20120008621



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ABCMR Record of Proceedings (cont)                                         AR20120008621



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