DOCKET NUMBER:  AR20090001426 


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 to general. 

2.  The applicant states, in effect, that he was absent without leave (AWOL) because he went to see his mother who was dying with cancer, without permission.  The Army should have honored his request to see his dying mother. 

3.  The applicant provides no additional documentation in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers all requests and statements to the applicant and provides no additional documentation in support of the applicant's 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 Regular Army, in pay grade E-1, on 11 July 1972, for 4 years.  He completed basic field artillery training and was awarded military occupational specialty 13A, cannoneer.  He was advanced to pay grade E-2 on 20 September 1972.

3.  On 20 April 1973, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward his superior noncommissioned officer and willfully damaging, by kicking with his feet and by use of his hands, the screen door and a window in building B56, on 13 April 1973.  His punishment included a forfeiture of $50.00 pay per month for one month (suspended until 15 August 1973) and 7 days restriction and extra duty.  He did not appeal the punishment.

4.  On 27 August 1973, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty and willfully disobeying a lawful order on 13 August 1973 and absenting himself from his place of duty on 23 August 1973.  His punishment included a reduction to pay grade E-1, a forfeiture of $75.00 pay per month for one month, and 7 days extra duty.  He did not appeal the punishment.

5.  The applicant was reduced to pay grade E-1 on 27 August 1973.

6.  On 4 October 1973, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from his unit from 24 September to 3 October 1973.  His punishment included a forfeiture of $71.00 pay per month for one month.  He did not appeal the punishment.

7.  The applicant was reported AWOL on 5 November 1973 and returned to military control on 12 November 1973.  He was again reported AWOL on 13 November 1973 and dropped from the rolls of his unit the same day.  

8.  A Commander's Inquiry, dated 19 November 1973, was conducted into the absence of the applicant.  The applicant's company commander stated that he had interviewed several of the applicant's friends and could not gain any clue as to why he went AWOL or of his possible whereabouts.  As far as he knew, the applicant had no financial problems which would have led him to depart AWOL.

9.  A DA Form 3975 (Military Police Report), dated 1 July 1974, advised the applicant's company commander that the applicant, as a deserter, was apprehended on 29 June 1974 by civilian authorities for burglary.  He was incarcerated pending further disposition by civilian authorities.  On 24 July 1974, the applicant's command was notified that he had escaped from confinement and his whereabouts were unknown.  

10.  The applicant was returned to military control on 25 August 1974.  He was again reported AWOL on 31 October 1974 and dropped from the rolls of his unit on 30 November 1974.  

11.  A letter, dated 11 November 1974, from Headquarters, 1st Cavalry Division, shows that an administrative discharge under the provisions of Army Regulation 635-200, Chapter 10, with an undesirable discharge, had been approved for the applicant on 8 November 1974.

12.  A Federal Bureau of Investigation letter, dated 12 December 1974, shows the applicant had been apprehended by the Salinas Police Department and charged with carrying a loaded concealed weapon and placed in custody.

13.  The applicant was returned to military control on 24 December 1974.  He was placed in military confinement on 30 December 1974 and in an excess leave status on 26 February 1975.

14.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contain a copy of his DD Form 214 (Report of Separation from Active Duty) which shows that he was discharged on 12 May 1975, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10.  His character of service was under conditions other than honorable and he was furnished an Undesirable Discharge Certificate.  He was credited with 2 years, 3 months, and 17 days total active service and 344 days lost time due to AWOL and civilian/military confinement.  

15.  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.

16.  Army Regulation 635-200 (Enlisted Separations), 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.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

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.

DISCUSSION AND CONCLUSIONS:

1.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review.  The applicant was returned to military control from a deserter status on 25 August 1974 after a lengthy period of AWOL that had begun on 13 November 1973 and included an arrest by civilian law enforcement authorities and an escape from confinement.   It appears that the applicant elected to be discharged from the service under the provisions of Army Regulation 635-200, Chapter 10, thereafter.  He departed in an AWOL status again on 31 October 1974 and his discharge was approved on 8 November 1974.  He returned to military control on 24 December 1974, was placed in confinement and an excess leave status, and was discharged on 12 May 1975.  His records contain a properly constituted DD Form 214 which was authenticated by him.  This document 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 were considered; however, they are not supported by the evidence and do not support an upgrade of his discharge to a general discharge.

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)                                         AR20090001426



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ABCMR Record of Proceedings (cont)                                         AR20090001426



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