RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20080000394 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Chester A. Damian

Member

Mr. Qawiy A. Sabree

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge (UD), characterized as under other than honorable conditions (UOTHC), be changed to a hardship discharge.

2.  The applicant states, in effect, that his UD should be changed to a hardship discharge, under honorable conditions.  He adds that he was discharged due to hardship and is now applying for an upgrade.  He was having marital problems at that time, which involved his wife abandoning him with his newborn son.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.

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 he enlisted in the Regular Army on 27 March 1972.  He was scheduled for training in military occupation specialty (MOS), 31J, Teletypewriter Repairman.  

3.  The applicant departed absent without leave (AWOL) on 1 September 1972 while attending advance individual training (AIT) at Fort Gordon, Georgia.

4.  Item 44, of the applicant's DA Form 20 (Enlisted Qualification Record), shows that he was AWOL from 1-4 September 1972, from 2-9 October 1972, from 
6-7 November 1972, from 6 December 1972 to 25 January 1973, from 7 March to 9 April 1973, on 16 April 1973, from 17 April to 10 June 1973, and from 18 July to 1 August 1973.  He was confined from 1-15 February 1973 and from 
10-15 April 1973.
5.  The applicant was convicted by a special court-martial on 16 February 1973, of being AWOL from 6 December 1972 to 26 January 1973.  His sentence consisted of a forfeiture of $80.00 pay for 3 months and hard labor without confinement for 30 days.

6.  There is no evidence the applicant applied for a hardship discharge based on his marital problems, which he alleges involved his wife abandoning him with his newborn son.

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy his DD Form 214 which shows that on 1 August 1973, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  

8.  He was furnished an undesirable discharge, with his service characterized as UOTHC.  He had a total of 9 months and 24 days of creditable service and
191 days of time lost due to being AWOL and in confinement.

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

10.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate.  

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.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of facts and circumstances concerning the events that led to his discharge from the Army; however, the applicant's record contains a copy of his DD Form 214 he was issued on his separation.  This document lists the authority for his separation as Army Regulation 635-200, chapter 10, for the good of the service.  

2.  In the absence of evidence to the contrary, Government regularity is presumed.  The applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  It is apparent that the applicant's discharge was based on his extreme record of misconduct and receipt of his special court-martial.  His record included being AWOL on eight occasions and being confined twice for a total of 191 days of time lost.  Therefore, there is an insufficient basis to support his request for an upgrade of his UD.

4.  There is no evidence in the applicant's records, and the applicant has provided none, to show that he ever applied for a hardship discharge if his assertions are true about his marital difficulties.  He also has not provided evidence sufficient to mitigate the character of his discharge.

5.  The applicant now states that his UD should be changed to a hardship discharge, under honorable conditions, in effect, due to the fact that he was having marital problems at that time, which involved his wife abandoning him with his newborn son. 






6.  The evidence does not show the applicant ever applying for a hardship discharge prior to or after his periods of AWOL.  It appears he chose to go AWOL as a method of solving his problems.  However, it has been determined that the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his UD to a hardship discharge, under honorable conditions.

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM __  __CAD__  __QAS__   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.




___John T. Meixell    __
      CHAIRPERSON