RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 24 April 2008
DOCKET NUMBER: AR20070018819
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
Member
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his undesirable discharge (UD) be upgraded to honorable.
2. The applicant states that the incidents resulting in his discharge occurred when he was very immature and are not indicative of his true character. He had made a decision to relocate his wife due to financial hardship, but was unable to return to duty due to financial problems. He had every intention to return. He has only recently recognized the impact his discharge has on his life and would like to have his discharge upgraded as a matter of principle.
3. The applicant does not provide any additional documents in support of his request.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 6 November 1974 and was awarded the military occupational specialty of recovery specialist (tow truck driver).
3. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 3 November 1975 for being absent without leave (AWOL) from 1 through 29 October 1975.
4. The applicant again accepted NJP on 24 November 1975 for failure to go at the time prescribed to his appointed place of duty; for treating with contempt and disrespect his first sergeant; and for breaking restriction.
5. The applicants records do not contain his discharge packet. However, the applicant was issued an UD on 15 January 1976 under the provisions of Army Regulation 635-200, Chapter 13. He was 19 years old at the time of his discharge. His records also show that he was single (not married).
6. Army Regulation 635-200, chapter 13, set forth the policy and prescribes the procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts. When separation for unfitness was warranted an UD was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. Since the applicants discharge packet is not contained in his military records, the ABCMR must make a presumption of regularity, that what the Army did was correct.
2. The applicants records show that he accepted NJP on two occasions for serious acts of misconduct. These infractions would warrant an UD for unfitness.
3. The applicants contention that he was very immature is not accepted. He was 19 years old when he was discharged. Many Soldiers who were younger than the applicant honorably completed their enlistments.
4. The applicants statement that he had made a decision to relocate his wife due to financial hardship, but was unable to return to duty due to financial problems cannot be accepted with the existing documentation. His records show that he was single while he was on active duty. However, even if there was evidence that he was married, the Army provides many services to its Soldiers to help them during times of hardship. As such, there is no valid reason for a Soldier to go AWOL to overcome a hardship.
5. While it is unfortunate that the applicant is experiencing negative impacts as a result of his UD, he was issued that discharge based on his own misconduct. As such, this is not a basis for upgrading a properly issued 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
ABCMR Record of Proceedings (cont) AR20070018819
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA 22202-4508
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