BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100018121 


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 the reason for his discharge be changed to hardship and that the characterization of his discharge be upgraded to honorable.  

2.  The applicant states he was a highly valued member of the Army and was forced out early based on unjust acts on the part of the Army.  He claims he requested hardship (emergency) leave in 1985 due to an ailing grandfather who was not expected to live whom he had not seen in 15 years.  He claims this leave request was arbitrarily denied even though he had over 40 days of accrued leave.  He states his father committed suicide on 30 November 1972, and he could not let his grandfather pass without making contact and amends.  

3.  The applicant further states he received a general, under honorable conditions discharge (GD) and not a hardship discharge by his commander who was upset the applicant did not accept his Officer Candidate School recommendation.  He claims his separation processing was arbitrary and capricious as noted by a lieutenant’s statement regarding his being absent without leave (AWOL) and the hardship involved.  He further indicates as verified by statements from members of his chain of command, he would have not committed any misconduct had his leave been approved.  

4.  The applicant concludes by stating the arbitrary and willful misconduct on the part of the Army by not allowing him a hardship leave was the proximate cause to any and all perceived misconduct on his part.  


5.  The applicant provides the following document in support of his application:

* Self-Authored Affidavit
* 4 third party statements 
* Attorney Letter.

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 9 October 1984.   He was trained in and awarded military occupational specialty 11B (Infantryman) and private/E-2 is the highest rank he attained while serving on active duty.  His record further shows he was reduced to private/E-1 for cause on 30 December 1985.  

3.  The record shows the applicant earned the Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.  His record documents no acts of valor or significant achievement.  

4.  The record reveals a disciplinary history that includes his accrual of 14 days of lost time during a period of AWOL between 3 November and 17 November 1985.   

5. On 30 December 1975, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using a controlled substance on or about 16 September 1985, and for being AWOL from on or about 4 through on or about 18 November 1985. 

6.  The applicant’s record is void of any indication that he ever requested and was denied a hardship discharge, or that he was denied emergency leave.  



7.  On 21 March 1986, the applicant was notified by his unit commander of the intent to initiate separation action against him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), for misconduct and that he was recommending the applicant receive a GD.

8.  The applicant acknowledged the separation action notification and completed his election of rights on 25 March 1986.

9.  On 27 March 1986, the unit commander recommended the applicant be separated under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct (pattern of misconduct).  He cited his reasons for taking the action were a positive urinalysis and negative counseling.

10.  The applicant’s separation under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct (pattern of misconduct) was approved by the separation authority and on 17 April 1964, the applicant was discharged accordingly. 

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time of his discharge shows he held the rank of private/E-2 and had completed a total of 1 year, 5 months, and 25 days of creditable active military service.  It also shows he accrued 14 days of lost time due to AWOL.

12.  The applicant provides statements prepared by his platoon leader, a former platoon sergeant, and two noncommissioned officers of his section at the time of his discharge.  These statements all recommend the applicant receive an honorable discharge based on his performance of duty subsequent to his misconduct, and indicate his problems appear to be related to his off duty time.  

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.



14. Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.  Chapter 6 contains guidance on emergency leave.  Soldiers may be authorized emergency leave for up to 30 days for emergency situations within the immediate family. The following family members of either the Soldier or the Soldier's spouse:

* Parents, including stepparents
* Spouse
* Children, including stepchildren
* Sisters, including stepsisters
* Brothers, including stepbrothers
* Only living blood relative
* A person in loco parentis (A person in loco parentis is one who stood in place of a parent to the Soldier or the Soldier's spouse for 24 hours a day, for at least a 5-year period before the soldier or the soldier's spouse became 21 years of age).  

15.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 6 contains guidance on separation because of Dependency or Hardship.  The criteria for a dependency/hardship discharge states dependency exists when death or disability of a member of the Soldier’s (or spouse’s) immediate family causes the immediate family member to rely on the Soldier for principle care or support.  Hardship exists when in circumstances not involving death or disability, causes a member of the Soldier’s (or spouse’s) immediate family to rely upon the Solider for principle care or support.  The separations regulation identifies the same family members as those identified for emergency leave as immediate family:

16.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL.  Paragraph 14-3 contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions (UOTHC) discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge was arbitrary and capricious and was the result of his unjustly being denied emergency leave has been carefully considered.  However, there is insufficient evidence to support his claims.  

2.  By regulation, emergency leave for up to 30 days for emergency situations within the immediate family may be granted.  Grandparents are not identified as immediate family members if not considered in loco parentis.  A grandfather not in loco parentis is not identified as immediate family for emergency leave purposes.  

3.  The evidence of record is void of any documentation showing the applicant was denied emergency leave or that he ever applied for or was denied a hardship discharge, and he has failed to provide independent evidence supporting his assertion that he was unjustly denied emergency leave or that a hardship discharge was appropriate in his case.  

4.  The applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct. 

5.  Clearly, the supporting statements provided by members of the applicant’s supervisory chain and the overall honorable record of service was the basis for him receiving a GD instead of a UOTHC discharge.  However, it is equally clear his record of misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, absent evidence supporting his assertion he was unjustly denied emergency leave or a hardship discharge, there is an insufficient evidentiary basis to support an upgrade of his 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)                                         AR20100018121



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018121



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1