BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120001973 


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.

2.  The applicant states that he left the service voluntarily, but not with dishonor.

	a.  He was stationed at Fort Campbell, KY.  While performing duty as charge of quarters, and in following orders, he was brutally attacked by a Soldier and sustained facial scars.  As a result, he became disappointed in the lack of discipline and professionalism in the Army.

	b.  At about this time, his mother was a patient at Walter Reed Army Medical Center (WRAMC) in Washington, DC.  He was authorized emergency leave several times to visit her.  He requested a compassionate reassignment during this period.  Although his first sergeant and company commander recommended approval, his request was disapproved.

	c.  His mother passed away while he was at her bedside.  Shortly thereafter, he was assigned to a Medical Holding Company (MHC) at WRAMC where he "did absolutely nothing."

	d.  All of these events and circumstances caused him to become distraught and he went absent without leave (AWOL).  He eventually turned himself in to Army officials at Fort George G. Meade, MD.  He was then sent to Fort Dix, NJ for processing where he accepted a discharge from the Army.
	e.  He states "at no time, whatsoever, did I dishonor my unit, service, uniform, or my country."

	f.  In 1977, he requested veterans benefits and an upgrade of his discharge.  He began receiving benefits from the Department of Veterans Affairs (VA) for a service-connected disability and he believed his discharge had been upgraded.

	g.  In 2010, when he requested a copy of his discharge document, he realized his discharge had not been upgraded.  He requests upgrade of his discharge in the interest of justice.

3.  The applicant provides a copy of his discharge document and a letter.

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 July 1975 for a period of
3 years.  He was awarded military occupational specialty 71B (Clerk Typist).

3.  Headquarters, WRAMC, Washington, DC, Orders 34-15, dated 17 August 1976, reassigned the applicant from Company A, 326th Medical Battalion, Fort Campbell, KY to the MHC, WRAMC with a reporting date of 20 August 1976.

4.  Three DA Forms 4187 (Personnel Actions) show the applicant's duty status was changed from:

* patient (hospital) to AWOL, effective 12 September 1976
* AWOL to dropped from the rolls (DFR), effective 11 October 1976
* DFR to returned to military control (at Fort George G. Meade, MD), effective 9 November 1976

5.  Headquarters, U.S. Army Training Center, Fort Dix, NJ, Orders 134-79, dated 11 November 1976, assigned the applicant to Company A, U.S. Army Personnel Control Facility, Fort Dix, NJ, effective 9 November 1976.

6.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) relating to the period of AWOL or a copy of his separation packet.  His discharge packet is not available.

7.  Headquarters, U.S. Army Training Center, Fort Dix, NJ, Orders 155-76, dated 2 December 1976, reduced the applicant to private (E-1), effective 23 November 1976, and assigned him to the U.S. Army Transfer Point for separation from the service with an Undesirable Discharge Certificate.

8.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 3 December 1976 in accordance with Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with service characterized as under other than honorable conditions.  He had completed 1 year, 2 months, and
6 days of active service this period and he had 58 days of time lost.

9.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  In support of his application, the applicant provides a VA, Veterans Service Center Manager, Baltimore, MD, letter, dated 1 September 2011, that shows the applicant is receiving disability compensation based on service-connected disabilities rated at 10%.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

  	a.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, at the time the applicant was discharged an undesirable discharge was considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that 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 applicant contends his under other than honorable conditions discharge should be upgraded because he left the service voluntarily, but not with dishonor.

	a.  The applicant acknowledges he went AWOL and records show he was in an AWOL status from 12 September through 8 November 1976.

	b.  Records also show the applicant had a total of 58 days lost and he completed less than half of his 3-year enlistment obligation.

   c.  Thus, the evidence of record refutes the applicant's contention that at no time (emphasis added) did he dishonor the uniform, his unit, the military, or his country.

2.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge and narrative reason directed appear to have been, and still are, appropriate.

3.  Thus, in view of all of the foregoing, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

4.  Therefore, there is no basis for granting the requested relief.
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)                                         AR20120001973



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001973



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1