IN THE CASE OF:	

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080017207 


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 that his undesirable discharge be upgraded to fully honorable.

2.  The applicant states that he attempted to leave the service through normal channels in order to take care of his mother who was very ill.  When this failed, he just left.

3.  The applicant provides his separation document (DD Form 214).

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 military records show that he enlisted in the Regular Army on 28 October 1971 and was awarded military occupational specialty (MOS) 11E (armor crewman).

3.  From 17 November 1972 until 3 April 1973, the applicant accepted nonjudicial punishment (NJP) twice; the first time for being absent without leave from 13 to 14 November 1972 and the second time for failing to go at the time prescribed to his appointed place of duty.

4.  On 5 July 1973, the applicant was convicted by a special court-martial for being AWOL from 15 to 24 April 1973 and from 6 May to 8 June 1973.

5.  The applicant's discharge packet is not contained in his military records.  However, on 14 August 1973, the applicant was issued an Undesirable Discharge Certificate for unfitness, frequent incidents of a discreditable nature with civil or military authorities.

6.  The applicant's military records do not contain any documents which would show that the applicant requested a dependency discharge to care for his mother.

7.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation 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 undesirable discharge was normally considered appropriate.

8.  Army Regulation 635-200, chapter 6, prescribed the criteria for separations due to hardship and dependency.  Dependency exists when death or disability of a member of a Soldier's (or spouse's) immediate family causes that member to rely upon the Soldier for principal care or support.  In order to qualify for a dependency separation, the conditions must have arisen or have been aggravated to an excessive degree since entry on active duty, and the conditions cannot be temporary.

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was administered two NJPs and one special court-martial that show a pattern of misconduct which would certainly warrant an undesirable discharge.

2.  There is no evidence to show that the applicant requested a dependency discharge due to his mother's illness.  Even if he had and his request was disapproved, it would mean that his circumstances did not meet the regulatory criteria for a dependency discharge and would have been required to remain on active duty to complete his military service obligation.

3.  The applicant's discharge packet is not contained in his records.  Therefore, a presumption of regularity is assumed, that what the Army did was correct.  The burden of proof otherwise lies with the applicant.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080017207



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ABCMR Record of Proceedings (cont)                                         AR20080017207



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