BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110010457 


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 his Bad Conduct Discharge (BCD) be upgraded to an honorable discharge; the reason for his discharge be changed to "convenience of the Government; his reentry (RE) code be changed to RE-1; his Separation Program Designator (SPD) code be changed to match the new reason for his discharge; and his completion of the Airborne Course be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states at the time of his discharge all parties involved were unaware of the circumstances and, therefore, unable to properly assess the entire situation in order to make the correct decision regarding a discharge.  He adds that he successfully completed the Airborne Course on 18 April 1978.

3.  In an attachment to his request, the applicant states that the presumption of regularity that might normally permit one to assume the Army acted correctly in characterizing his service does not apply in his case.  He asks the Board to provide a detailed explanation if it disagrees with him.

4.  The applicant continues that he has:

* been a good citizen since discharge
* been an active member of his church for 13 years
* never been in trouble with the law
* been a mentor to young men who have lost their fathers

5.  He adds that his mother had been ill and as her only son he felt responsible to help her out.  She died on 19 April 1981.  This affected him emotionally as well.

6.  He concludes that he has been a model citizen since his discharge, he is reliable, and he needs the upgrade to apply for Department of Veterans Affairs (VA) benefits.

7.  The applicant provides:

* his DD Form 214
* four letters of support
* an Airborne Course Certificate of Completion
* a picture of an award given to him by his church
* his mother's death certificate showing she died on 19 April 1981

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 military records show that he enlisted in the Regular Army on 5 April 1977 and was awarded the military occupational specialty of light wheel vehicle mechanic.

3.  He was absent without leave (AWOL) from:

* 16 October to 26 November 1978
* 2 February to 26 March 1979
* 31 May 1979 to 22 March 1980
* 30 September to 1 October 1980
* 6 October 1980
* 17 to 19 October 1980
* 22 to 28 October 1980
* 7 to 11 November 1980
* 14 to 17 November 1980
* 18 November 1980
* 27 November 1980 to 27 May 1981

4.  He was confined:

* on 23 March 1980
* from 29 May to 2 September 1980

5.  He accepted nonjudicial punishment (NJP) twice for being AWOL.

6.  His DA Form 2-1 (Personnel Qualification Record), item 35 (Record of Assignments), shows he was awarded his MOS on 1 June 1979, a date that coincides with a period of him being AWOL.  He was assigned as a power generator and wheeled vehicle mechanic at Fort Hood, TX on 23 March 1980, the day he was released from confinement.  He was again imprisoned on 29 May 1980.  He was either AWOL or confined for the vast majority of the remainder of his military career.

7.  On 29 May 1980, he was convicted by a special court-martial of being AWOL from 31 May 1979 to on or about 23 March 1980.  He was sentenced to a BCD, confinement for 4 months, and forfeiture of $299.00 pay per month for 4 months.

8.  On 17 July 1980, the court-martial sentence was approved.

9.  On 19 December 1980, the United States Army Court of Military Review affirmed the court-martial's findings of guilty and sentence.

10.  On 14 April 1981, the court-martial sentence having been affirmed, the sentence was ordered executed.

11.  Accordingly, on 27 May 1981 the applicant was given a BCD as a result of court-martial.  The DD Form 214 he was issued shows he was given the corresponding SPD and RE codes for such a discharge.  His DD Form 214 does not show him holding an MOS with the Skill Qualification Identifier (SQI) of "P" for parachutist.

12.  On 13 October 1982, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.


13.  In the processing of this case the Board's staff contacted the United States Army Infantry School at Fort Benning, GA who confirmed the applicant completed the Airborne Course, Class 20-78, which was conducted from 27 March to 14 April 1978.

DISCUSSION AND CONCLUSIONS:

1.  The applicant went AWOL on 11 occasions.  Such repeated, serious misconduct certainly warranted a punitive discharge.

2.  He was tried in accordance with the applicable regulations, he was found guilty of the offense of being AWOL for almost a year, and the sentence was affirmed by the United States Army Court of Military Review.

3.  As such, the evidence shows the applicant was given due process and his rights were protected throughout his trial.

4.  If the applicant was providing care and support to his mother, it is reasonable to presume that he would have mentioned that when he accepted NJP or was being tried by court-martial.  There is no evidence that he mentioned that his mother was ill and there is no evidence that he was providing her with any care and support at the time.  If the applicant was providing such care, the Army had provisions to allow him to continue to provide that care in the form of a compassionate reassignment or hardship discharge.  As such, it must be presumed that either the applicant was not providing care and support to his mother, or he did not inform his command of his situation and allow the Army to assist him while he honorably completed his enlistment.  In either case his mother's death does not form the basis for granting his request to upgrade his discharge. 

5.  The applicant's other argument for upgrading his discharge is his good post service citizenship.  While the applicant's good citizenship is commendable, it only shows that he is now behaving the way a good citizen should behave.  Good citizenship, in and of itself, is not a sufficient basis to warrant upgrading a properly issued discharge.

6.  Since there is no basis for upgrading the applicant's discharge, there would be no reason to change the reason and authority for his discharge, his RE code, or his SPD code.

7.  However, the applicant attended and completed the Airborne Course.  As such, it would be appropriate to add that course of instruction to his DD Form 214.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x_  _____x___  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Airborne Course, 3 weeks, April 1978 to Item 14 (Military Education) of his DD Form 214.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his BCD or changing the reason for discharge, RE code, or SPD code.



      _______ _ 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)                                         AR20110010457





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ABCMR Record of Proceedings (cont)                                         AR20110010457



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