IN THE CASE OF:	  

		BOARD DATE:  5 September 2013

		DOCKET NUMBER:  AR20120023030 


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 under other than honorable conditions discharge to an honorable discharge.

2.  He states:

* he desires an upgrade to correctly reflect the character of his service and for justice to be served
* he was "never offered nor given any punitive directives" during his service
* his service contract and rights under the Uniform Code of Military Justice (UCMJ) and Army regulations were violated numerous times
* he was denied his right to see a senior judge advocate (SJA) in Germany and a company commander placed a guard at the SJA's door with orders that he was not to be allowed to see the SJA
* he was "offered any post in the Army if [he] decided to stay in"
* actions he took were the result of advice given to him by SJAs at Fort Benjamin Harrison, IN
* an upgrade will allow his continued membership in veterans' organizations and correct the injustice he was forced to accept
* a Veterans Administration (VA) letter, dated 9 May 1984, shows the VA determined his Army service was "of an Honorable nature"
* he received a letter of commendation for his "outstanding performance" which reflected great credit upon the U.S. Army

3.  He provides a VA letter and a memorandum, subject:  Letter of Commendation.  He indicates he has provided a certificate, dated 7 October 1976, showing he was selected as the outstanding leader of a class; however, the certificate was not enclosed with his application.

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.  Having had prior service in the U.S. Marine Corps, on 23 January 1976 the applicant enlisted in U.S. Army Reserve Delayed Enlistment Program (DEP).  His record shows he agreed to subsequently enlist in the Regular Army (RA) for a period of 3 years beginning on or about 26 April 1975 to attend Warrant Officer Flight Training.  

3.  On 23 April 1976, he enlisted in the RA for a period of 3 years in the rank/grade of sergeant (SGT)/E-5.  On that date, he signed a DA Form 3286-12 (Statements for Enlistment – Part VI – US Army Warrant Officer Flight Training Enlistment Option).  This form shows, in part, that he acknowledged that if he failed to complete preflight or flight training successfully, he would be required to complete the remaining time of his RA enlistment period in an enlisted status.  The form did not specify which military occupational specialty (MOS) he would hold in such a status, nor did it specify where he might be assigned.

4.  A memorandum, subject:  Notification of Elimination from Course of Instruction, United States Army Aviation Center, dated 28 July 1976, shows he was eliminated from the Warrant Officer Rotary Wing Aviator Course effective 27 July 1976 due to his resignation.  The memorandum shows he was scheduled for a reassignment interview on 29 July 1976.

5.  His record shows he was assigned to Fort Sam Houston, TX, on or about 16 August 1976 for training in MOS 91B (Medical Specialist).  

6.  A statement, dated 4 October 1976, shows he was asked to consent to accept a lateral appointment to specialist five (SP5)/E-5 upon completion of training for MOS 91B.  The document shows he declined to sign the statement after having been advised of the redesignation of skill levels in MOS 91B.

7.  On 7 October 1976, he completed the training and was awarded MOS 91B.  His record contains a U.S. Army Academy of Health Sciences certificate showing he was selected as the outstanding leader of his class.

8.  On 16 November 1976, he was assigned to duty with an armored cavalry regiment in Germany.  

9.  Effective 26 November 1976, his duty status was changed to absent without leave (AWOL), and, effective 25 December 1976, he was dropped from the unit rolls.

10.  On 3 January 1977, he surrendered to military authorities at Fort Benjamin Harrison, IN.  

11.  On 12 January 1977, he was charged with being AWOL from 26 November 1976 to 3 January 1977.  

12.  On 13 January 1977, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and of the procedures and rights available to him.  

13.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He acknowledged:

	a.  by submitting the request, he was acknowledging he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge;

	b.  under no circumstances did he desire further rehabilitation as he had no desire to perform further military service;

	c.  he had been afforded the opportunity to consult with appointed counsel;

	d.  he understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate;

	e.  as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under Federal and State law; and
 
	f.  he understood he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

14.  He elected to provide a statement in his own behalf.  

	a.  In his statement, he expressed his dissatisfaction with the program for which he had enlisted and described his decision to resign from Warrant Officer Flight Training.  He stated he was told he could have his choice of three MOS's, and if there were openings, he would be sent to the appropriate school.  He initially requested MOS 91T (Veterinarian Assistant).  He was told he would be trained in MOS 91B and could later request training in MOS 91T.  

	b.  He stated that upon investigating the chances of getting into the school for MOS 91T, he was told he would have to work in the field for a year and then apply.  

	c.  When he completed the course for MOS 91B, he still had not received orders.  After 2 days, he received orders for Germany.  He was given 2 days' notice and told if he wanted leave he would have to leave the next day.  He was told he could bring his wife at Government expense.  He stated Germany was a 3-year tour with no possibility of attending school.  

	d.  He went to Germany with the hope of being assigned to a hospital where he could get some experience as a nurse.  He was sent to Bad Kissingen.  His wife was a registered radiology technician, and there wasn’t an x-ray machine within 50 miles.  Bad Kissingen only rated one SGT.  There was already one there, so he was told he would be laterally appointed to SP5.  He had contracted to be a SGT, so he would not be laterally appointed.  He stated he "tried to see legal but they wouldn't let [him]."  He was told by his leadership that he would learn to like it there.  His wife informed him she didn't want to come to Germany, and he couldn't have brought her unless he extended his enlistment for at least 7 months.  

	e.  He stated his choices amounted to:

		(1)  spending 2 and 1/2 years in Germany with no chance to broaden his education and without his wife,
		(2)  spending 3 years in Germany with his wife with no chance to broaden his education, but without her being employed and with both of them returning to the United States with limited experience for their age, or

		(3)  going home on leave and trying to straighten things out using legal services at Fort Benjamin Harrison, IN.

	f.  He chose the third option.  He stated he regretted that he could not persuade someone that he had a real problem that needed attending to.  He couldn't say what his attitude would be if his request for discharge were disapproved, and he noted that, in the 2 years he had left, he could be a registered nurse going to college instead of being an Army hospital orderly.

15.  On 1 February 1977, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, and directed he receive an Under Other than Honorable Conditions Discharge Certificate.  On 10 February 1977, he was discharged as directed.  

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

17.  He provides:

	a.  a memorandum, subject:  Letter of Commendation, dated 7 October 1976, from the Commander, Company C, 4th Battalion, Academy Brigade, Academy of Health Sciences, Fort Sam Houston, TX, commending him for his performance as Class Sergeant; and

	b.  a VA letter, dated 9 May 1984, showing the VA determined his period of RA service to be under honorable conditions for the purpose of entitlement to education benefits.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes 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 and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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 does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

3.  It appears his decision to go AWOL was based on his dissatisfaction with his assignment and MOS subsequent to his resignation from the program for which he had originally enlisted.  Dissatisfaction with an assignment or MOS was not then, nor has it ever been, a basis for excusing AWOL.  Further, there is no documentary evidence showing the Army violated any provisions of his enlistment contract.  

4.  He states he was denied access to an SJA in Germany; however, there is no documentary evidence showing he was denied access to any counsel to which he may have been entitled.  Even if such evidence were available, it would not excuse his misconduct.  

5.  The favorable VA determination regarding his eligibility for education benefits is not a basis for upgrading his discharge.  The determination was made under the VA's statutory authority and only extends to benefits eligibility.  The determination did not change the underlying discharge, and it is not evidence of error in the underlying discharge.  When an applicant requests an upgrade of his or her discharge, the Army decides each case individually under its own statutory and regulatory authority.  
6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no documentary evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to a general discharge or 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)                                         AR20120023030





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ABCMR Record of Proceedings (cont)                                         AR20120023030



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