IN THE CASE OF:	  

		BOARD DATE:  27 September 2012

		DOCKET NUMBER:  AR20120006972 


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 to an honorable discharge (HD).

2.  The applicant states he had mental problems that he needed help for; instead, he was simply discharged.  He was young and immature at the time he served.

3.  The applicant provides his enlistment contract, his DA Form 2-1 (Personnel Qualification Record - Part I), DA Form 20 (Enlisted Qualification Record), and DD Form 214 (Report of Separation from Active Duty).

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 on 28 May 1971, completed training, and was awarded the military occupational specialty 71U (Card and Tape Writer).

3.  The applicant was absent without leave (AWOL) from 17 November 1971 through 26 January 1974.

4.  On 5 February 1974, he was arrested by civilian authorities on the state charge of criminal malicious mischief.

5.  On 9 April 1974, a special court-martial found the applicant guilty of AWOL from 17 November 1971 through 26 January 1974.  His sentence was a forfeiture of $100.00 pay per month for 5 months and confinement for 5 months.

6.  The applicant completed his period of confinement on 19 June 1974 and was reported AWOL on 1 July 1974.  General court-martial charges were initiated at that time.

7.  He was apprehended by civilian authorities and returned to military control on 18 December 1974.   

8.  On 6 January 1975, the applicant was afforded a medical examination for the purpose of a chapter 10 discharge.  No medical or mental abnormalities were reported on the examination.

9.  The documentation related to the applicant's discharge processing is not of record.

10.  His DD Form 214 shows the applicant was discharged on 18 February 1975 under the provisions of Army Regulation 635-200, chapter 10 with a UD.  He had 10 months and 20 days of creditable active service with 1,037 days of lost time. 

11.  The record contains no indication of any award or any personal decoration or letters of appreciation or commendation.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  an HD 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; 

	b.  a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;

	c.  a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier; and

	d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  At the time the discharge was referred to as an undesirable discharge.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  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.  

2.  The type and character of the discharge is commensurate with the offense and is consistent with his overall record.

3.  The record does not contain and the applicant has not provided any evidence that he was suffering from a psychiatric, psychological, mental, or emotional problem at the time of his AWOL.

4.  Absent convincing evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not both tell right from wrong and adhere to the right, there is no error or an injustice in the 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)                                         AR20120004283





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ABCMR Record of Proceedings (cont)                                         AR20120006972



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