IN THE CASE OF:	  

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090012199 


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, upgrade of his undesirable discharge (UD) to a fully honorable discharge (HD).

2.  The applicant states, in effect, that he completed basic training; however, when he was notified that his brother was ill and his mother was dying, he felt he had to get home, which put him on the wrong side of military justice.  He now requests upgrade of his discharge because he is ill and in need of assistance.

3.  The applicant provides a self-authored statement, dated 20 June 2009; and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 25 May 1973 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 record shows that he enlisted in the Regular Army (RA) on
3 August 1972.  He completed basic combat training at Fort Knox, KY.

3.  Item 33 (Appointments and Reductions) of the applicant’s DA Form 20 (Enlisted Qualification Record) confirms he held the rank/grade of private (PV1)/E-1 and that this was the highest rank/grade he attained while serving on active duty.  It also shows that he earned the National Defense Service Medal (NDSM) during his tenure on active duty.  His record documents no acts of valor or significant achievement.

4.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code) of the applicant's DA Form 20 shows he accrued 14 days of time lost during two separate periods of being absent without leave (AWOL).

5.  The applicant’s record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate dates for the offenses indicated:  9 January 1973, for wrongfully possessing marijuana and using marijuana; and 26 January 1973, for being AWOL from 10 through 18 January 1973.

6.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a DD Form 214 that confirms the applicant was separated on 25 May 1973.  This document confirms the applicant was separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, and that he received a UD.

7.  The applicant’s DD Form 214 also shows that at the time of his discharge, he had completed 8 months and 9 days of creditable active military service and he had accrued 14 days of time lost due to AWOL.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of members for unfitness, for frequent involvement in incidents of a discreditable nature with civil and/or military authorities.  A UD was normally considered appropriate for members separated under these provisions; however, the separation authority could authorize an HD or general, under honorable conditions discharge (GD) if warranted by the members overall record of service.
10.  Paragraph 3-7a of the same regulation provides that an HD 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.

11.  Paragraph 3-7b further provides that a GD 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.  The applicant’s contention that his UD should be upgraded because he went AWOL based on the illnesses of his brother and mother, and because he is now ill and in need of veterans medical benefits, was carefully considered.  However, while his current medical condition is unfortunate, this factor alone is not sufficiently mitigating to support an upgrade of his discharge.

2.  The applicant’s record is void of the specific facts and circumstances surrounding the applicant’s discharge processing.  However, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s discharge.  This document carries with it a presumption of government regularity in the discharge process.  Therefore, absent evidence to the contrary, it is concluded his separation processing was accomplished in accordance with the applicable regulation; and that requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's record reveals no acts of valor or significant achievement; however, it does reveal a significant disciplinary history that includes his accrual of 14 days of time lost due to AWOL and his acceptance of NJP for the possession and use of illegal drugs.  As a result, his record did not support the issue of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade of his discharge at this late date.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.
5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090012199



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012199



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1