IN THE CASE OF: BOARD DATE: 10 November 2015 DOCKET NUMBER: AR20150005106 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, in effect, reconsideration of his request for an upgrade of his under other than honorable conditions discharge. 2. The applicant states that prior to enlisting in the U.S. Army, his fiancée became pregnant and his first child was born in April 1968. He enlisted and served in the U.S. Army from 13 September 1968 to 25 May 1972. a. He was charged with being absent without leave (AWOL) for 20 days during the period January to April 1969. While stationed at Fort Jackson, SC, in April 1969, he took leave to marry his fiancée. Then, in May 1969, he received orders for Germany. He served overseas for 1 year, 11 months, and 18 days. b. He learned that his wife was pregnant and addicted to heroin. She gave birth in March 1970. c. In May 1971, he returned to the United States and was stationed at Fort Devens, MA. From May to September 1971, he had periods of AWOL during which he was attempting to help his wife and children while living in a high crime area. His wife remained addicted to drugs, he was under a lot of stress, and his military pay was insufficient to move into a better housing area. He was able to get his wife admitted into rehabilitation in March 1972. All of this caused him to be in an AWOL status for a total of 93 days. However, he completed 3 years, 5 months, and 10 days of creditable service (more than his 3-year obligation) and this should be considered good service. d. He states that since his discharge from the Army he: * was employed at an Exxon Auto and Gas station (1973–1976) * moved to Massachusetts and worked as an automobile mechanic (1977– 1979) * relocated to Connecticut: remarried, became active in church, and worked full-time with Whitney Black, Inc. (1980–1985) * graduated trade school for telephone communications * was employed as a cable installer technician with Storer Cable * obtained employment at Sears Automotive Repair Shop (1988) * worked faithfully in his church, became State licensed, and was ordained along with his wife (1990–1998) * became a homeowner in 2003 * graduated from the New Haven Police Citizen's Academy (July 2007) * attended English and Math courses, Adult Basic Education (2013) * attended computer courses, Gateway Community College (2013) * participated in church bowling league and won three championships * volunteered at the Veterans Hospital, West Haven, CT (2009 – present) e. He states that an upgrade of the characterization of his service will allow him to hold his head high like other veterans who have had situations similar to his. He adds that his health is a concern to him and it will allow him the option of seeking medical treatment at the Department of Veterans Affairs (VA). 3. The applicant provides copies of the following documents: * three self-authored statements (summarized above) * two identification (ID) cards (VA New England Healthcare System and Gateway Community College) * a certificate * six letters of support 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 (and reconsideration within 1 year of the date of the decision for the original consideration of the case). 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 (or within the policy guidance for reconsideration) 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC92–07459 on 12 August 1992. 3. The applicant enlisted in the Regular Army on 13 September 1968 for a period of 3 years. Upon completion of training he was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic). He served overseas in Germany from 5 May 1969 through 23 April 1971. 4. He accepted nonjudicial punishment (NJP) on five occasions, as follows: * on 24 February 1969, for being AWOL from 5 January 1969 to 7 January 1969 and from 13 January 1969 to 11 February 1969 * on 10 April 1969, for being AWOL from 7 April 1969 to 9 April 1969 * on 28 July 1969, for being AWOL from 24 July 1969 to 25 July 1969 * on 6 January 1970, for failing to go to his appointed place of duty and for willfully disobeying a lawful command from his superior commissioned officer * on 30 August 1971, for being AWOL from 23 August 1971 to 26 August 1971 5. On 18 August 1971, the applicant was convicted by a summary court-martial of being AWOL (three specifications) from 1 June 1971 to 30 June 1971, 9 July 1971 to 12 July 1971, and 19 July 1971 to 29 July 1971. His sentence consisted of forfeiture of $75.00 pay per month for 1 month and reduction in rank to private first class (E-3). 6. On 16 September 1971, suspension of reduction to pay grade E-1 imposed by the 30 August 1971 NJP was vacated and he was reduced to private (E-1). 7. On 6 October 1971, the applicant was convicted by a summary court-martial of being AWOL from 21 September 1971 to 27 September 1971. His sentence consisted of forfeiture of $120.00 pay per month for 1 month and restriction to the company area, mess hall, and chapel for 30 days. 8. On 28 April 1972, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (two specifications), for being AWOL from 9 November 1971 to 13 April 1972 and from 17 April 1972 to 19 April 1972. 9. The applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the VA * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions. d. He was also advised that he could submit statements in his own behalf and he elected to submit a statement. e. The applicant and his counsel placed their signatures on the document. f. A review of the applicant's statement shows that he provided essentially the same family-related reasons for his periods of AWOL as he now offers in support of his request for reconsideration. However, it is noted that his statement also shows, in pertinent part, "Soon I myself got hooked." 10. His chain of command recommended approval of his request for discharge with the issuance of an undesirable discharge. The company commander's recommendation shows, in pertinent part, "Although the U.S. Army has bent over backwards to assist him, [applicant] still continues with his AWOL periods. His personal, family, and financial problems are severe, but they are not so serious that they could not be surmounted within the bounds of military discipline." 11. On 18 May 1972, the separation authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate. 12. The applicant appealed the characterization of his service and type of discharge certificate directed. The chain of command considered his appeal and affirmed their previous recommendations. On 23 May 1972, the appeal authority reaffirmed the decision to separate the applicant with an Undesirable Discharge. 13. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he entered active duty this period on 13 September 1968 and that he was discharged on 25 May 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. He had completed 3 years, 5 months, and 10 days of net active service during this period and he had 93 days of time lost. 14. On 15 December 1981, the Army Discharge Review Board (ADRB) determined that the applicant was properly discharged. Accordingly, the ADRB denied the applicant's request for an upgrade of his discharge. 15. On 24 May 1994, the applicant requested the assistance of President W___ C____ in an effort to upgrade his discharge. On 9 August 1994, the applicant was informed that once the ABMCR reaches a decision on an individual's application, the case can be reconsidered only upon presentation of new evidence. Since the applicant did not submit any new evidence, no action could be taken on his request. 16. On 27 December 2000, the applicant requested the assistance of Senator J___ I. L____ , U.S. Senate, in an effort to upgrade his discharge. On 5 June 2001, the ABCMR notified the applicant that his request for reconsideration did not contain substantial relevant new evidence nor was it submitted within 1 year of the original consideration. Accordingly, he was informed there was no basis for resubmitting his request to the Board for reconsideration. 17. In support of his application the applicant provides the following documents. a. Christ Assembly of Worship of the Apostolic certificate that shows the applicant was ordained as a lifetime minister on 6 September 1998. b. VA Connecticut Healthcare System, West Haven, CT, letter, dated 23 February 2015, that shows the applicant "has donated loyal hours of volunteer service since 2009 for our veterans." c. Vertical Church, West Haven, CT, letter, dated 26 February 2015, written by J__ B. S____, Family Pastor, who states he has known the applicant since 1990 as a member of the Living Word Ministries/Vertical Church. He attests to the applicant's character, family values, ministry in the church, and volunteer service. d. Vertical Church, West Haven, CT, letter, dated 25 February 2015, written by G__ P____, Maintenance Supervisor, who states he has known the applicant for one year as a good friend. He attests to the applicant's reliability, dependability, and work ethic. e. Vertical Church, West Haven, CT, letter, dated 2 March 2015, written by W___ H____ Jr., Assistant Maintenance Supervisor, who states he has known the applicant for 19 years as a friend, co-worker, and member of Vertical Church. He attests to the applicant's character, dedication to family, and work ethic. f. Vertical Church, West Haven, CT, letter, dated 24 February 2015, written by D__ M____, Facilities Worker, who states he has known the applicant for 25 years. He attests to the applicant's character, family values, and faith. g. Vertical Church, West Haven, CT, letter, dated 25 February 2015, written by E__ V____, who states he has known the applicant for 25 years as a member of the Living Word Ministries. He attests to the applicant's character, dedication to family, and work ethic. 18. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides 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. Chapter  3, 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. Chapter 3, 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 applicant's request for reconsideration of his request for upgrade of his discharge because he was experiencing family problems that caused him to go AWOL and his good post-service achievements was carefully considered. 2. The evidence of record shows the applicant provided the separation authority essentially the same family-related problems as the reason for his periods of AWOL as he now presents to this Board in his request for reconsideration. a. However, the evidence of record also shows the applicant admitted to his use of drugs when he submitted his request for discharge in lieu of trial by court-martial. In addition, the company commander stated that a good deal of effort was made to assist the applicant, but he continued to go AWOL. b. During the administrative separation process and the appeal, the separation authority considered the applicant's reasons for going AWOL. The applicant also provided this same reason in his original request to the ABCMR and it was considered. In this regard, the applicant provides no new substantial relevant evidence in his application for reconsideration of his case. 3. The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. Considering all the facts of the case, his separation and characterization of his service were appropriate and equitable. 4. The evidence of record shows that during the period of service under review the applicant received NJP on five occasions, he was convicted by two summary courts-martial, he had 93 days (i.e., more than 3 months) of time lost, and he was reduced to grade E-1. Thus, the applicant's record of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled either an honorable discharge or a general, under honorable conditions discharge. 5. The applicant's post-service conduct was considered. However, his post-service conduct is insufficient as a basis for upgrading his discharge. 6. Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief. 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 to amend the decision of the ABCMR set forth in Docket Number AC92–07459, dated 12 August 1992. _______ _ __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) AR20150005106 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005106 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1