IN THE CASE OF:

		BOARD DATE:  14 February 2012

		DOCKET NUMBER:  AR20110015459 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he was told he would receive an honorable discharge 
6 months after retraining at Fort Riley, KS.  After his brother-in-law committed suicide and his wife almost lost her baby, his wife asked him to get out of the Army.  He tried to get a hardship discharge at the time and he was told no.  His commander told him the only way out was to go absent without leave (AWOL).  While he was in retraining, he was running with a back pack and experienced chest pains and cramps in his legs.  He went on sick call and the nurse said "so what you will be discharged soon."  He later found out he has angina.  He is disabled and is asking for mercy.

3.  The applicant did not provide any additional 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 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 enlisted in the Regular Army on 31 October 1972.  He completed training and he was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Repairman).

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 occasions.

* 14 June 1973, for failing to go at the time prescribed to his appointed place of duty on 13 June 1973
* 7 September 1973, for being AWOL from 24 August to 7 September 1973
* 9 October 1973, for being AWOL from 11 September to 1 October 1973

4.  The specific facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a(1) with a separation program designator (SPD) code of 28B (Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities, with issuance of an Undesirable Discharge Certificate.  His DD Form 214 shows he completed
1 year and 14 days of total active service with 206 days of time lost.

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

6.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13, in effect at that time, applied to separation for unfitness which included frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

	b.  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.

	c.  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.

7.  Army Regulation 15-185 (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 he was told he would receive an honorable discharge 
6 months after retraining at Fort Riley.

2.  There is no evidence of record and the applicant did not provide any evidence that shows he was told his discharge would be automatically upgraded to honorable at any time.

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of his service is commensurate with his overall record.

4.  Notwithstanding the applicant's assertion that his discharge should be upgraded, the available evidence does not show any mitigating circumstances that would warrant an upgrade of his discharge.

5.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

6.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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)                                         AR20100011108



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ABCMR Record of Proceedings (cont)                                         AR20110015459



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