IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20090002954 


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, his undesirable discharge (UD) be upgraded.

2.  The applicant states, in effect, that he went absent without leave (AWOL) because his mother was ill and it was a hardship.  While on leave he attempted to make contact with his superior officers to let them know, but he was not able to contact anyone. 

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 20 April 1972, for 2 years.  He completed basic and advanced individual training and was awarded military occupational specialty 11B, Light Weapons Infantryman.  He was promoted to pay grade E-3 on 27 August 1972.  This was the highest grade that held.

3.  On 23 January 1973, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from 13 January to 17 January 1973.  The punishment imposed was a forfeiture of $57.00 pay per month for 1 month, restriction to the company area for 14 days, 14 days of extra duty, and a reduction to pay grade E-2 (suspended for 60 days).

4.  On 10 September 1973, the applicant accepted punishment under Article 15, UCMJ, for failing to go to his appointed place of duty on 4 September 1973.  The punishment imposed was an oral reprimand, a reduction to pay grade E-2 (suspended for 60 days), and 14 days of restriction and extra duty.

5.  The applicant was reported AWOL on 21 September 1973 and dropped from the rolls of his organization on 30 October 1973.  He was apprehended by civilian authorities on 28 November 1973 and returned to military control.

6.  The applicant was reduced to pay grade E-1 on 20 December 1973. 

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

8.  All of 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 which shows he was discharged on 21 December 1973, under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 10, for the good of the service in lieu of court-martial with an Undesirable Discharge Certificate.  He was credited with completing 1 year, 4 months, and 28 days of net active service.  He also had 95 days of lost time due to being AWOL.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (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.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  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.

13.  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 of the facts and circumstances pertaining to the applicant's discharge are not available 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.  In the absence of evidence to the contrary, Government regularity is presumed.

2.  The applicant’s contentions have been considered; however, based on the available evidence, there is no basis for an upgrade of his discharge.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  The applicant voluntarily requested a discharge to avoid a court-martial conviction thereby waiving his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly due to a hardship.

3.  Additionally, he has submitted no evidence to mitigate his offense or to substantiate that his mother's illness caused a hardship that was the result of him being AWOL.  Even if he had a hardship it was his responsibility to seek assistance through his chain of command, the Red Cross, the chaplain’s office or various other organizations that were available to assist him. 

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)                                         AR20090002954



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ABCMR Record of Proceedings (cont)                                         AR20090002954



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