IN THE CASE OF:	  

		BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090003742 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states that this action was done out of hardship and the need to secure his family that solely depended on him for everything.  He contends that he requested on several occasions to be transferred from Germany to stateside at Fort "McCullogh" to be near his family.  His mother, father, and his wife's father were deceased.  His wife's mother was ill and lived with her other four children.  It was a very difficult time for him as a returnee from Vietnam and he had complications.  He apologizes for his actions and days lost.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 was inducted into the Army of the United States on 22 June 1970.  He completed the required training and was awarded military occupational specialty (MOS) 76Y (Unit/Organization Supply Specialist).  He served in Vietnam from May 1971 to March 1972.  He was honorably released from active duty on 13 March 1972 and transferred to the U.S. Army Reserve Control Group (Annual Training) on the following day.  His highest grade attained was specialist four, E-4.  

3.  The applicant enlisted in the Regular Army on 30 June 1975.  At the completion of the required training, he was awarded MOS 15E (Pershing Missile Crewman).  

4.  On 22 September 1976 and 22 October 1976, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for the following offenses: (1) being absent without leave (AWOL) from 2 August 1975 to 29 August 1976 and from 9 October 1976 to 22 October 1976 and (2) wrongful possession of an unspecified amount of marijuana.   

5.  He served in Germany from October 1976 to November 1977.

6.  On 5 December 1977, charges were preferred against the applicant for being AWOL from 12 October 1977 to 29 November 1977.

7.  The applicant's complete discharge packet is not available.  His DD Form 214 shows he was discharged on 22 February 1978 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service – in lieu of court-martial with issuance of an UOTHC discharge.  He completed 2 years, 5 months, and 19 days of active military service during the period under review and 4 years, 2 months, and 11 days of total active military service.  He had 65 days of lost time due to AWOL.

8.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

9.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

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.

11.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully reviewed.  However, there is no evidence and the applicant has not provided sufficient evidence to support his claims.  

2.  The applicant's service record shows he received two Article 15s and was AWOL for a period of 65 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a general under honorable conditions or fully honorable discharge for his current enlistment.  

3.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed the issuance of an UOTHC discharge based on the applicant’s overall record of service and that the separation action was processed in accordance with the governing regulation.

4.  The applicant has provided no evidence other than his self-authored statement that the circumstances regarding his personal problems were the reasons he committed the offenses which led to his discharge.  Even if so, he had the responsibility to resolve his personal problems through other means, to include seeking help from his chain of command.  Therefore, he has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

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)                                         AR20090003742





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ABCMR Record of Proceedings (cont)                                         AR20090003742



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