IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100009594 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he requested time off to care for his parents.  His father was disabled and his mother broke her leg and arm in an automobile accident.  He states they live in a mountainous community and there was no one else to help care for them.

3.  The applicant provides copies of:

* a Standard Form (SF) 180 (Request Pertaining to Military Records)
* a Petition for Clemency, dated 24 April 1980

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 military personnel records show he enlisted in the Regular Army on 21 May 1976 for a period of 3 years.  He reenlisted on 9 May 1979 for a period of 4 years.

3.  On 21 April 1980, the applicant pled guilty and he was found guilty before a special court-martial of being:

* absent without leave (AWOL) from on or about 19 February to on about
27 February 1980
* AWOL from on or about 4 March to on or about 6 March 1980
* AWOL from on or about 14 March to on or about 18 March 1980

His sentence consisted of:

* reduction to the lowest enlisted grade, E-1
* forfeiture of $250.00 pay per month for 3 months
* hard labor without confinement for 90 days
* restriction for 60 days

4.  On 24 April 1980, the applicant's defense counsel submitted a petition of clemency to the convening authority.  Counsel stated the evidence pointed to the fact the applicant went AWOL in an effort to aid his parents who were handicapped by poor health and physical disability.  The applicant went home to perform manual chores for his parents, such as chopping wood and accomplishment of other physical chores during his absence.  Counsel requested the applicant's forfeiture of $250.00 per month for 3 months be suspended for a period of 6 months.

5.  On 6 May 1980, the convening authority approved the sentence as adjudged.

6.  There is no evidence in the applicant's Official Military Personnel File (OMPF) that he requested emergency leave or that he applied for a hardship discharge to care for his parents.

7.  The applicant's records also show he was AWOL from on or about 8 February 1981 to on or about 8 April 1981.  However, the records do not contain a disposition for this period of AWOL.

8.  The applicant's separation processing package was not available for the Board's review.

9.  The facts and circumstances pertaining to the applicant’s discharge are not on file.

10.  On 29 October 1981, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, due to conduct triable by court martial.  He had completed 2 years, 3 months, and 20 days of active service that was characterized as under other than honorable conditions.  He had 75 days of time lost.

11.  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 under other than honorable conditions is normally considered appropriate.

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 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded to an honorable discharge.  He contends his parents were in need of his help because his father was disabled and his mother had been injured in an automobile accident.

2.  The reasons the applicant gives for his last period of AWOL are essentially the same as the reasons given by his defense counsel when requesting clemency after his court-martial 10 months earlier.  His previous periods of AWOL totaled 14 days; however, his last period of AWOL was for 61 days.

3.  There is no evidence the applicant requested assistance or that he applied for emergency leave or a hardship discharge to care for his parents.

4.  Although the applicant's separation package was not available, in order for him to be discharged under the provisions of Army Regulation 635-200,
chapter 10, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have been required to consult with defense counsel and to have voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted he was guilty of the offenses he was charged with, and acknowledged that he could receive an under other than honorable conditions discharge.

5.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  Therefore, the type of discharge and the reason for separation are appropriate considering all the facts of the case.

6.  The applicant's multiple periods of AWOL do not show acceptable conduct and performance of duty.  His latest period of AWOL for 61 days shows his service is unsatisfactory.  Therefore, there is insufficient substantive evidence to upgrade the applicant's under other than honorable conditions discharge.

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)                                         AR20100009594



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ABCMR Record of Proceedings (cont)                                         AR20100009594



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