IN THE CASE OF:
BOARD DATE: 17 January 2012
DOCKET NUMBER: AR20110012559
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 undesirable discharge (UD) be upgraded.
2. The applicant states, in effect, he was young and confused by things that were going on in the military and in civilian life. He was hanging around with the wrong crowd and started using drugs and alcohol; both were readily available on base. He regrets what he did and still has great respect for those who serve.
3. The applicant provides no supporting documentation
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 28 November 1969.
3. During training he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on:
a. 16 January 1970, for being absent without leave (AWOL) from 2330 hours on 14 January 1970 through 0115 hours on 15 January 1970; and
b. 20 March 1970, for being AWOL from 1700 hours on 18 March 1970 through 0245 hours on 19 March 1970.
4. On 7 April 1970, a summary court-martial found the applicant guilty of two specifications of breaking restriction.
5. The applicant was reported in an AWOL status and dropped from his unit's rolls as a deserter on 17 May 1971.
6. Evidence in the available record indicates that in January 1975 the applicant requested to participate in the Presidential Clemency Program but it was determined he was not eligible due to not being a U.S. citizen and that he was residing outside of the United States.
7. He remained absent until he was discharged in abstentia on 12 March 1975. His DD Form 214 shows he had 4 months and 16 days of creditable service. He also had 954 days of lost time prior to his normal expiration term of service (ETS) date and 835 days of lost time after his normal ETS date which was
27 November 1972.
8. On 14 June 1985, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.
9. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policies and procedures for enlisted personnel separations. It provides the following:
a. an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty; and
b. a general discharge is a separation under honorable conditions. When authorized, it is issued to a Soldier whose military record was satisfactory, but not so meritorious as to warrant an honorable discharge.
10. Army Regulation 15185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR 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 record does not contain and the applicant has not provided any evidence to mitigate his misconduct, the mere passage of time by itself does warrant relief.
2. The regulation governing the Board's operation requires that the discharge process must be presumed to have been in accordance with applicable law and regulation unless the applicant can provide evidence to overcome that presumption.
3. The applicant's very limited period of creditable service cannot be shown to have been honorable in light of two NJP's and his court-martial action much less the fact that he had almost 5 years of lost time and fled the country before being discharged in abstentia as a deserter.
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) AR20110012559
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ABCMR Record of Proceedings (cont) AR20110012559
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