IN THE CASE OF:	  

		BOARD DATE:	    7 July 2011

		DOCKET NUMBER:  AR20100029954 


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

2.  The applicant states he was discharged from the Army for missing too many days of school and not being able to graduate with his peers.  He was not given an opportunity to explain the reasons for his inability to attend class.  He would now like the Board to know that he left the base at the time to go to Juarez, Mexico to relax.  While there, someone spiked his drink with some kind of a drug. He had an allergic reaction and he got sick.  He was then arrested by local police and thrown in jail for unknown reasons.  He was released from prison after a U.S. representative visited him.  After his release, he was taken back to Fort Bliss, TX, where he received hospitalization.  His unit, however, had already reported him in an absent without leave (AWOL) status but he was not given an opportunity to explain the events that occurred.  He believes his AWOL was not his fault.  He was sick and had no means to get back to base.  He had intended to make the Army a career and if he had legal help after his discharge, he would be benefiting from the Army for the next 20 years. 

3.  The applicant provides a Department of Veterans Affairs (VA) Form 10-10EX (Application for Health benefits) and his DD Form 214 (Armed Forces of the United States Report of Transfer or discharge).




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 records show enlisted in the Regular Army for 3 years on 22 August 1972.  He completed basic combat training at Fort Polk, LA, and he was subsequently reassigned to Fort Bliss TX, for completion of advanced individual training.  He was assigned to Headquarters, Student Battalion, School Brigade, U.S. Army Air Defense School. 

3.  On 16 December 1972, he departed his training unit in an AWOL status but he returned on 24 December 1972.

4.  On 2 January 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 16 to 24 December 1972.  

5.  On 20 April 1972, he again departed his training unit in an AWOL status but he returned on 24 April 1972.

6.  On 25 April 1972, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 20 to 24 April 1972.  

7.  On 1 May 1972, he again departed his unit in an AWOL status.

8.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his records contain the following documents:

	a.  DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 18 June 1973, which shows he was pending elimination action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel);

	b.  Special Orders Number 123, issued by the U.S. Army Air Defense School, Fort Bliss, TX, on 25 September 1973 ordering his reassignment to the Transfer Station/Point effective 28 September 1973 for separation processing under the provisions of chapter 13 of Army Regulation 635-200;

	c.  Special Orders Number 185, issued by the U.S. Army Air Defense Center and Fort Bliss, Fort Bliss, TX, also on 25 September 1973 ordering his discharge from the Army effective 28 September 1973 under the provisions of chapter 13 of Army Regulation 635-200, with an under other than honorable conditions discharge and the issuance of an Undesirable Discharge Certificate; and 

	d.  A duly-constituted DD Form 214 that shows he was discharged for unfitness under the provisions of chapter 13 of Army Regulation 635-200 with an Undesirable Discharge Certificate.  This form shows he had completed 1 year and 24 days of creditable active military service and he had 13 days of lost time.

9.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

10.  He submitted a VA Form 10-10EZ requesting enrollment in the VA system for health services. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded.

2.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, he was issued a DD Form 214 that shows he was discharged for unfitness under the provisions of chapter 13 of Army Regulation 635-200 with an Undesirable Discharge Certificate.  

3.  In the absence of evidence to the contrary, the discharge proceedings are presumed to have been conducted in accordance with law and regulations applicable at the time and the character of the discharge is presumable commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service appear to be both proper and equitable.  

4.  There is no evidence in his records and he provided none to support his contention regarding his imprisonment and/or illness in Mexico.  Additionally, there is no evidence in the available records and he did not provide any evidence that shows his repeated AWOL was a result of his alleged imprisonment.  

5.  His records reveal a history of AWOL.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  He has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20100029954



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ABCMR Record of Proceedings (cont)                                         AR20100029954



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