IN THE CASE OF:	  

		BOARD DATE:	  12 March 2009

		DOCKET NUMBER:  AR20080018073 


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, that his under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, he believes his discharge should be upgraded because he requested and was denied a hardship discharge by his company commander.  He was trying to go home to help his mother and father who had become disabled and needed help.  He went home and cared for them for a total of 4 years until they passed away.  In effect, this is his only reason he went absent without leave (AWOL).

3.  The applicant provides no additional documents in support of 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.  The applicant's military records show he enlisted in the U.S. Army Reserve on 9 September 1977.  He enlisted in the Regular Army in pay grade E-1 on 6 December 1977 for 4 years.  He completed basic and advanced training and was awarded military occupational specialty 76P (Material Control and Accounting Specialist).

3.  The applicant was promoted to pay grade E-5 on 6 June 1981.  He was discharged on 8 June 1981 for the purpose of immediate reenlistment and reenlisted on 9 June 1981 for 3 years.

4.  The applicant was reported AWOL on 26 April 1983 and returned to duty on 2 May 1983.  He was again reported AWOL on 6 May 1983 and dropped from the rolls of his organization on 5 June 1983.  He was apprehended by military authorities on 4 June 1984 and returned to military control on 12 June 1984.

5.  There is no evidence the applicant requested a hardship discharge during his period of service.

6.  The applicant was reduced to pay grade E-1 on 24 August 1984.

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contained a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that he was discharged on 12 September 1984 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of court-martial.  His character of service was under conditions other than honorable.  He was credited with 5 years, 8 months, and 3 days of total active service.  He was also credited with lost time from 26 April 1983 to 1 May 1983 and from 6 May 1983 to 3 June 1984 due to AWOL.

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

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge was normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

11.  Army Regulation 635-200, paragraph 3-7b, also 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.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review.  The applicant’s record contains a properly constituted DD Form 214 which identifies the reason and authority for the applicant's discharge and the characterization of his service.

2.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

3.  The applicant’s contentions have been noted; however, based on the available evidence, there is no basis for the upgrade of his discharge.  He has submitted no evidence to substantiate his claim that he requested and was denied a hardship discharge due to the declining health of his parents.  His records show he served without incident from 6 December 1977 through 8 June 1981 and attained the pay grade of E-4.  He reenlisted for 3 years and was promoted to pay grade E-5.  It appears that the applicant resorted to a lengthy period of AWOL during his second term as a means of addressing any problems he may have been having.  The evidence also shows he requested discharge in lieu of facing a court-martial, thereby waiving his opportunity to appear before a special court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.

4.  In order to justify correction of a military record the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
5.  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)                                         AR20080018073



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ABCMR Record of Proceedings (cont)                                         AR20080018073



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