IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20090021796 


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 1975 discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states in keeping with current policies and regulations regarding family hardships and progressive discipline, he believes his discharge is unjust and should be corrected.  He states the provisions of family care leave and hardship discharges did not exist or were not provided to him as an option.  He states as such, he was uninformed, not counseled, and was not granted appropriate family care leave to secure his pregnant girlfriend who was living with his dependent mother and disabled sibling.  

3.  The applicant states he performed his duties as expected and exceeded his physical training expectation to earn a promotion to squad leader while in basic training.  

4.  He notes he voluntarily returned to the military after being absent without leave (AWOL).  He also states since his discharge he earned a California Teaching Credential and has been employed by the California Department of Corrections since 1996.






5.  The applicant provides:

* A copy of his 1975 DD Form 214 (Report of Separation from Active Duty)
* A copy of the document terminating apprehension efforts after he voluntarily returned to duty
* A copy of a May 1974 Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)
* A copy of his teacher credentialing certificate

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 available records indicate the applicant enlisted in the Regular Army on 24 January 1974 after receiving a waiver for minor law violations as a minor.  The applicant was a resident of California at the time of his enlistment.

3.  He successfully completed basic combat training and was assigned to Fort Ord, California for advanced individual training.  In May 1974, while undergoing training at Fort Ord, he was punished under Article 15 of the UCMJ for being absent without leave (AWOL).  He subsequently completed training, was awarded military occupational specialty 71B (Clerk), and assigned to Fort Bragg, North Carolina.

4.  In July 1974, he was placed in an AWOL status after failing to return from leave.  He was subsequently dropped from the roles of the Army, in October 1974 he surrendered to civilian authorities in California, and he was returned to military control at Fort Ord.

5.  Documents associated with the applicant’s administrative separation processing were not in available record.  However, on 31 January 1975 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.

6.  The applicant DD Form 214 notes he had 88 days of lost time and 9 months and 10 days of creditable service.  His records also indicate he was placed in an excess leave status on 2 December 1974 he and was not available to sign his DD Form 214 when it was issued on 
31 January 1975.

7.  Army Regulation 635-200, 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.  At that time, an under other than honorable conditions discharge was normally considered appropriate. 

8.  Army Regulation 635-200, Chapter 6 provided for the separation of enlisted Soldiers because of dependency or hardship.  It noted dependency existed when because of death or disability of a member of the Soldier’s immediate family becomes principally dependent upon the Soldier for care or support.  Hardships existed when in circumstances not involving death or disability of a member of the Soldier’s immediate family, separation from the Service would materially affect the care or support of the Soldier’s family by alleviating undue and genuine hardship.

9.  Army Regulation 630-5 (Leaves and Passes), in effect at the time, provided for emergency leave of a Soldier for a serious situation involving accident, illness, or major surgery that cannot be postponed due to the urgency of the medical conditions.  The situation must result in a serious family problem.  The family problem must impose important responsibility on the Soldier that must be met immediately and cannot be accomplished from his duty station or by any other individuals or by other means.  The immediate family includes children and stepchildren.

10.  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.


11.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant’s argument that he was not afforded opportunities currently available to Soldiers because of family hardships is without foundation.  The Amy has always had programs and policies to assist Soldiers who are faced with family hardships.

3.  The applicant’s argument that he performed his duties as expected is not supported by the evidence of record.  Rather, the available evidence indicates the applicant was AWOL while undergoing advanced individual training and he went into an AWOL status a second time shortly after being assigned to his permanent duty station.  

4.  Although the applicant’s separation action is not available, the applicant would have voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  In the absence of evidence to the contrary regularity is presumed and the applicant has provided no evidence indicating his administrative separation was not accomplished in compliance with applicable regulatory guidance or that there were procedural errors that would have jeopardized his rights.

5.  The applicant’s post service accomplishment, while noteworthy, are not sufficiently mitigating to warrant the relief requested.

6.  In order to justify correction of a military record the applicant must 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)                                         AR20090021796



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ABCMR Record of Proceedings (cont)                                         AR20090021796



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