IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100014815 


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, in effect, that his under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he was in special education since grade school and he dropped out of high school.  Prior to enlisting in the Army National Guard (ARNG) he had to pass the General Education Development (GED) Test. His military records falsely indicate he passed the GED; his recruiter indicated the falsification would not be a problem.  His recruiter even convinced him to join the Regular Army.  Since he had already completed basic training, he was sent to Fort Leonard Wood, MO and awarded military occupational specialty (MOS) 62P (Construction Equipment Repairman).  The instructors at the school were aware of his learning disability; therefore, the instructors and fellow students helped him.

3.  He also states that he was stationed at Fort Bragg, NC working on construction equipment and he did not have problems doing the hands on work; but he had problems with the paperwork portion of his job.  Unfortunately his supervisors did not believe he could not read or write.  He inquired about going to school, but he was told according to his records he had a GED.  He started drinking due to the stress he was under and when his family moved to Fort Bragg his stress increased.  He started missing formations and he had problems fulfilling his military obligation.  He went to the chaplain and tried to get a hardship discharge.  His wife eventually left him and he went absent without leave (AWOL).  When he returned from being AWOL he was discharged.  He acknowledges he knows going AWOL was not the right thing to do.  
4.  He provides:

* DD Form 214 (Report of Separation from Active Duty) for the period ending 26 April 1977
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 10 August 1978
* Office of the Adjutant General Reserve Components Personnel and Administration Center Orders 02-56365, dated 13 February 1979
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 February 1980
* West Michigan Veteran's Assistance Program letter, dated 20 April 2010
* Local Arrest Record for the City of Grand Rapids, MI, dated 28 April 2010
* DD Form 293 (Application for the Review of Discharge or Dismissal From the Armed Forces of the United States), dated 28 April 2010 

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.  An official report of test results for the GED taken at the Counseling Center Testing Office, Student Services Building, East Lansing, MI, dated 5 January 1978, shows the applicant passed his GED test. 

3.  On 14 April 1976, he enlisted in the Michigan Army National Guard (MIARNG).  He successfully completed basic training and advanced individual training and he was awarded MOS 63B (Wheel Vehicle Mechanic).  On 
10 August 1978, he was discharged from the MIARNG for enlistment in the Regular Army (RA).  

4.  On 14 September 1978, he enlisted in the RA in MOS 63B.  

5.  On 12 July 1979, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to be at his appointed place of duty.

6.  Evidence of record shows he was AWOL on 5 September 1979 and during the period 4 October 1979 through 25 January 1980.

7.  The applicant's court-martial charge sheet is not available and the applicant's service personnel records do not contain the facts and circumstances surrounding his separation processing.  However, his DD Form 214 shows he was discharged on 22 February 1980 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of administrative discharge conduct triable by a court-martial with service characterized as "under other than honorable conditions."  The applicant completed 1 year, 1 month, and 16 days of creditable active service with 114 days of lost time due to being AWOL.

8.  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, 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.  The request must include the individual's admission of guilt.  An under other than honorable conditions discharge is normally considered appropriate.

9.  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

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not provided evidence to confirm his learning ability at the time he went AWOL or any attempts he may have made to solicit assistance.  The available evidence shows he passed his GED prior to enlisting in the military and he was awarded MOS 63B which showed he could function as a Soldier.  Unfortunately, there is no evidence that he was any less educated than other Soldiers who had a GED.
2.  His administrative separation is presumed to have been accomplished in accordance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

4.  The applicant's records show he received one Article 15.  He completed
1 year, 1 month, and 16 days of his enlistment obligation and he had 114 days of lost time due to being AWOL.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, which are required for the issuance of a general discharge.  Therefore, there is no basis for granting him relief.

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)                                         AR20100014815



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ABCMR Record of Proceedings (cont)                                         AR20100014815



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