IN THE CASE OF:	 

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090018147 


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 an upgrade of his undesirable discharge.

2.  The applicant states that he made a grave decision.  He got hooked on drugs and alcohol while he was stationed in Germany.  He came home on emergency leave but could not get himself together enough to make it back to Germany.  Eventually, he was reduced to pay grade E-4.  At that time he decided to get out of the Army.  Since his discharge he has married and raised a family, he owns a construction business, and he is the pastor of a very successful church.  He is very ashamed of his discharge and wants to make it right.

3.  The applicant provides two letters of support, a DD Form 256A (Honorable Discharge Certificate), a DD Form 258A (Undesirable Discharge Certificate), and copies of his official military personnel file and service medical record.

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.  On 18 September 1972, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 21 February 1973, the applicant was assigned for duty with the 2d Squadron, 2d Armored Cavalry Regiment, located in the Federal Republic of Germany.

4.  On 16 May 1973, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty and for drinking in a public place when he was supposed to be on guard duty.  The punishment included reduction to pay grade E-1 (suspended), a forfeiture of $50.00 pay per month for 1 month, and 14 days of restriction and extra duty (suspended).

5.  On 28 August 1974, the applicant was advanced to sergeant/pay grade E-5.

6.  On 22 September 1974, the applicant was honorably discharged for the purpose of immediate reenlistment.  He had completed 2 years and 5 days of creditable active duty service.  He reenlisted on 23 September 1974.

7.  The applicant went absent without leave (AWOL) on 18 February 1976.  On 10 July 1976, he was apprehended by the Tuscaloosa, Alabama, police.  He was released to military control on 15 July 1976 and he was placed in pre-trial confinement on 16 July 1976.

8.  The available records do not contain the charge sheet.

9.  The discharge packet is not contained in the applicant's military records.  However, his DD Form 214 (Report of Separation from Active Duty) shows that he was administratively discharged on 14 October 1976 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for conduct triable by court-martial.  His service was characterized as under conditions other than honorable.  He had completed a total of 3 years, 7 months, and 25 days of creditable active duty and had 155 days of lost time due to AWOL and confinement.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was usually issued.

12.  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.

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.
14.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-9, provides that the Board 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.
15.  The applicant provides a letter of support from his son, the mayor of his town, and a letter from a pastor.

	a.  The applicant's son writes that his father is an honest person with the highest level of trustworthiness.  He is hard working, dedicated, and passionate about his goals.

	b.  The pastor writes that he has known the applicant for more than 25 years.  He has always displayed excellent character.  He has been a good husband, father, and grandfather.  The applicant has worked very hard at his construction business and as pastor of two churches at different times.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded.
2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The applicant's record of good service is greatly diminished by his lengthy AWOL.  His admission that he made a grave decision and that he became dependent on drugs and alcohol is not sufficiently mitigating to warrant an upgrade of his discharge.

4.  The applicant's claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his AWOL.

5.  Based on his entire military record, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

6.  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 the aforementioned requirement.

7.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20090018147



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018147



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1