IN THE CASE OF:	

		BOARD DATE:	  2 April 2009

		DOCKET NUMBER:  AR20080019475 


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 undesirable discharge be upgraded to a general, under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, that due to personal hardships, difficulties within his personal relationships, and his youth and immaturity he did not report back to military duty.  He further states, in effect, that he is now sober and free of alcohol and would like assistance from the Department of Veterans Affairs (VA).  

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 4 March 1973; a DD Form 214 (Report of Separation from Active Duty) with an effective date of 17 April 1975; VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 18 November 2008; a self-authored statement, dated 13 November 2008; a statement from his girlfriend, dated 13 October 2008; and a statement from his pastor, dated 6 October 2008 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 personnel record shows that he enlisted in the Army National Guard on 19 August 1972 for a period of 6 years.  At the time of his enlistment the applicant was given an NGB (National Guard Bureau) Form 21b (Certificate and Acknowledgement of Service Requirements for Individuals Enlisting in the Army National Guard Under the Reserve Enlistment Program - 1963) as required by Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) for the purpose of providing facts about his Ready Reserve Obligation.  The NGB Form 21b stated that the applicant could be ordered to active duty if he failed to satisfactorily participate in scheduled unit training and accrued in any one-year period a total of 5 unexcused absences.  On 10 August 1972, the applicant signed the statement acknowledging that he had been so counseled.

3.  He successfully completed basic and advanced individual training and was awarded military occupational specialty (MOS) 91A (Medical Corpsman).

4.  Records show that the applicant's commander notified him in writing on 16 September 1973 that he had four unexcused absences for four unit training assemblies conducted on 15 and 16 September 1973.  This letter further stated that the applicant had a total of 15 unexcused absences for the period 28 April 1973 through 16 September 1973 and that with five or more unexcused absences in any one-year period a Soldier could be ordered to active duty.  The applicant was directed to report to the unit's next unit training scheduled for 13 October 1973.

5.  First U. S. Army, Fort George G. Meade, Maryland Letter Order Number E100-31, dated 4 April 1974, ordered the applicant to active duty in accordance with Army Regulation 135-91.  The applicant was ordered to report to Fort Dix, New Jersey on 9 May 1974 and this same order shows his active duty commitment period as 18 months and 28 days. 

6.  On 8 May 1974, the applicant was discharged from the Army National Guard and issued an NGB Form 22 (Report of Separation and Record of Service in the Army National Guard).  The reason and authority for discharge was involuntary order to active duty in accordance with Army Regulation 135-91. 
7.  Records show the applicant was assigned to Headquarters and Headquarters Company, 3rd Battalion, 47th Infantry, 9th Infantry Division with duty at Fort Lewis, Washington.  

8.  Records show the applicant's company commander prepared a DA Form 4187 (Personnel Action) and reported the applicant as absent without leave (AWOL), effective 27 September 1974.  On 26 October 1974, the company commander prepared a second DA Form 4187 and reported the applicant as Dropped from the Rolls (DFR) of the Army in accordance with Army Regulation 630-10 (Absence Without Leave and Desertion), paragraph 3-2c(8).

9.  On 21 March 1975, the applicant was apprehended by military authorities and returned to military control at Fort Dix.  The records do not contain a disposition for this period of AWOL.

10.  The applicant's separation processing packet was not available for the Board's review; however, his records contain the same DD Forms 214 as submitted by the applicant.

11.  On 17 April 1975, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, by reason of conduct triable by court-martial.  The DD Form 214 issued to the applicant during this period of service shows he completed 5 months and 14 days of net active service this period and 5 months and 2 days of prior active service, for a total of 10 months and 16 days of total active service, with 176 days of days lost due to AWOL.  He was issued an Undesirable Discharge Certificate with service characterized as under other than honorable conditions. 

12.  In the statements provided by the applicant and his girlfriend, it is stated that when the applicant came home on leave, he discovered that the mother of his child had left him and gone back to her old boyfriend.  The applicant now suffers from schizophrenia, bipolar disorder, and paranoia, and can barely make ends meet.  The applicant states that he has not drunk anything [alcohol] since February 2007.

13.  There are no records to show that the applicant applied to the Army Discharge Review Board (ADRB) to upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or 

offenses for which the authorized punishment included 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.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, an undesirable discharge was normally considered appropriate. 

16.  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.  

17.  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.

18.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to general, under honorable conditions or an honorable discharge.  

2.  The applicant's military personnel records show that as a member of the Army National Guard he failed to consistently attend regularly scheduled unit training assemblies.  He was therefore released from the Army National Guard and involuntarily ordered to active duty for 18 months and 28 days.  The applicant's unexcused attendance pattern continued on active duty when his company commander 

reported him as AWOL and then DFR.  He was apprehended by military authorities and returned to military control at Fort Dix.  The applicant's conduct was triable by court-martial and he voluntarily elected separation in lieu of court-martial.  

3.  Although the applicant's separation package was not available, in order for him to be discharged under the provisions of Army Regulation635-200, chapter 10, charges would have had to have been preferred against him for an offense for which the authorized punishment includes a punitive discharge.  The applicant would have been required to consult with defense counsel and to have voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted he was guilty of the offenses he was charged with, and acknowledged that he could receive a discharge under other than honorable conditions.

4.  The applicable Army regulation clearly provides that military discharges are based on the quality of the Soldier’s military service in accordance with published standards.  The applicant’s 176 days of AWOL is not acceptable conduct or performance which merit a general or an honorable discharge. 

5.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  Therefore, the type of discharge and the reason for separation are appropriate considering all the facts of the case.

6.  The applicant has not submitted any documentation to substantiate his contention that the mother of his child left him while he was on active duty.  However, even if he had, it would not excuse his misconduct.  The Army has resources available to Soldiers who are experiencing hardships, and will discharge a Soldier who has a confirmed hardship when only the Soldier's separation will alleviate that hardship.

7.  The fact that the applicant is now alcohol free is commendable.  However, it is insufficient in and of itself to warrant upgrading a properly issued discharge.

8.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

9.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's other than 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)                                         AR20080019475



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ABCMR Record of Proceedings (cont)                                         AR20080019475



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