IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012074 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states he had medical conditions.  While on active duty he was in a hospital at Fort Campbell, Scott Air Force Base, and Walter Reed Army Medical Center.  His unit had him as being absent without leave (AWOL).

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and extracts from his service medical records.

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 4 December 1975, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  The applicant served an incomplete tour of about 21 months in the Federal Republic of Germany and a complete tour of 12 months in the Republic of Korea.

4.  The applicant was advanced through the ranks from private/E-1 to specialist four/E-4.  On 9 September 1980, he was promoted to sergeant/E-5.

5.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows a total of 149 days of lost time due to:

	a.  AWOL from 8 to 15 May 1978;

	b.  AWOL from 26 and 27 May 1982;

	c.  not in the line of duty on 26 August 1983;

	d.  AWOL from 21 July 1983 to 2 August 1983;

	e.  not in the line of duty from 31 August 1983 to 21 October 1983; and

	f.  AWOL from 22 October 1983 to 25 December 1983.

6.  The applicant accepted nonjudicial punishment (NJP) on:

	a.  28 May 1982 for AWOL;

	b.  24 December 1982 for disobeying a lawful order, being derelict in his duties, and being drunk on duty; and

	c.  9 August 1983 for AWOL.

7.  On 12 January 1984, charges were preferred under the Uniform Code of Military Justice for violation of Article 86 for AWOL during the period 22 October 1983 to 26 December 1983 (65 days).

8.  The discharge packet is missing from his military records.  However, his DD Form 214 shows he was administratively discharged on 13 March 1984 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He completed a total of 7 years, 10 months, and 24 days of creditable active duty and had 149 days of lost time.

9.  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.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.

11.  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.

12.  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.
13.  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.
14.  The medical documentation provided by the applicant shows he was admitted to Brooke Army Medical Center on 27 August 1983 as the result of a motor vehicle accident that occurred on 25 August 1983.  The narrative summary indicates he was AWOL on 2 November 1983, the date of his discharge from the hospital.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that that his under other than honorable conditions discharge should be upgraded to honorable because he was hospitalized at the time his unit showed him to be AWOL.

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 medical evidence provided by the applicant is insufficient to show he was improperly reported as AWOL at the time of his accident and subsequent admission to the hospital.  Furthermore, even if he was improperly accounted for as AWOL during the period of his hospitalization, it does not mitigate his unauthorized absence from 22 October 1983 to 26 December 1983 that may have been the basis for his administrative discharge.

4.  The available records contain court-martial charges for AWOL; however, this may or may not have been the misconduct that led to the applicant's discharge.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100012074



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ABCMR Record of Proceedings (cont)                                         AR20100012074



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