IN THE CASE OF:	  

		BOARD DATE:	    27 January 2011

		DOCKET NUMBER:  AR20100019198 


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 discharge be upgraded to a general discharge.

2.  The applicant states he asked for a hardship discharge while on leave because of multiple family deaths and sickness.  He thought he was getting a hardship or general discharge.  His hardships included the loss of his first child, the passing of his father-in-law, putting his mother-in-law on life support, and his wife having a nervous breakdown.  As a result he went absent without leave (AWOL).
 
3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 6 December 1972, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).   He was subsequently assigned to Fort Jackson, South Carolina.

3.  The applicant accepted the following nonjudicial punishments:

	a.  8 February 1973, for being AWOL on 5 February 1973;

	b.  29 March 1973, for being AWOL 26 - 27 March 1973;

	c.  18 April 1974, for being AWOL 28 January to 22 March 1974;

	d.  1 July 1974, for being AWOL on 28 June 1974; and

	e.  29 July 1974, for being AWOL on 22 July 1974.

4.  On or about 24 February 1975, charges were initiated against the applicant under the Uniform Code of Military Justice for violation of Article 86 for being AWOL, commencing on or about 24 February 1975.

5.  The discharge packet is missing from the applicant's military records.  However, his DD Form 214 shows he was administratively discharged on 
23 May 1975, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions.  He had completed 2 years and 3 months of creditable active duty service and had 191 days of lost time due to being AWOL and in confinement.

6.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

8.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to a general discharge because he requested a hardship discharge and thought he was receiving a general discharge.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's 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 applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  Notwithstanding the applicant's assertion that he was undergoing multiple family hardships at the time, there is no available evidence showing he had such problems or that they were the cause of his numerous periods of AWOL or that he sought a hardship discharge.

6.  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)                                         AR20100019198



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ABCMR Record of Proceedings (cont)                                         AR20100019198



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