BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120011350 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that at the time of his discharge he was very young, very immature, and made all the wrong decisions.  He states he is older and he understands the mistakes he made and only wishes he could go back and correct them.  He is asking to have his discharge upgraded to honorable based on his maturity and his need for medical care. 

3.  The applicant provides three personal character reference letters; a copy of his DD Form 214 (Report of Separation from Active Duty), dated 24 June 1978; a copy of his enlistment documentation; and a copy of his DA Form 2-1 (Personnel Qualification Record).

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 was born on 14 February 1958 and enlisted in the Regular Army, on 15 June 1976, at 18 years, 3 months and 1 day of age.   He completed basic combat training and advanced individual training at Fort Bliss, TX.  He was awarded the military occupational specialty of 16P (Chaparral Crewman).  The highest grade/rank he obtained while on active duty was private first class/E-3. 

3.  He accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 14 June 1977, for being absent without leave (AWOL) from his unit (C Battery, 4th Battalion, 61st Air Defense Artillery, Fort Carson, CO), from on or about 20 May 1977 to on or about 25 May 1977.  

4.  He was charged with being AWOL from 1 September 1977 until
30 September 1977, at which time he was dropped from the rolls.  He was returned to military control on 28 March 1978 at the provost marshal office at Fort Campbell, KY.

5.  The applicant’s DA Form 2-1, Item 21 (Time Lost Under Section 972, U.S. Code and Subsequent to Normal Date ETS (Expiration of Term of Service)), shows he was AWOL on two occasions, from 20 May 1977 to 24 May 1977 and from 1 September 1977 to 27 March 1978.  He was dropped from the rolls on   30 September 1977.  His record shows he had a total of 213 days of time lost.

6.  The specific facts and circumstances pertaining to the applicant's discharge proceedings are not available for review.  The DD Form 214 shows he was discharged on 24 June 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He was issued an Under Other Than Honorable Conditions Discharge Certificate.  He completed 1 year, 5 months, and 8 days of total active service.

7.  The applicant provides several character reference statements from friends and business associates who generally state that he has turned his life around and has been an honorable, extremely dedicated individual, with great work ethics and is a trustworthy employee as well as a sincere friend.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has 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, a discharge under other than honorable conditions is considered appropriate.

10.  Army Regulation 635-200, 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.  

11.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he was young and immature at the time of his service.  However, there is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed military service.  

2.  The evidence shows that the applicant was AWOL on 2 occasions for a combined total of 213 days.

3.  The available evidence does not include a copy of the applicant's separation packet with the specific facts and circumstances surrounding his final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's final discharge.  Therefore, government regularity in the discharge process is presumed.

4.  The character reference letters submitted by the applicant were considered; however, there is no substantial evidence to support a change in the actions by the command concerning his discharge.

5.  The fact that the applicant is currently experiencing an economic situation
and is in need of health care is unfortunate.  However, there are no
provisions in Army regulations that allow the upgrade of a discharge for the
sole purpose of securing veteran's benefits.  The applicant must provide
evidence to prove the discharge was rendered unjustly, in error, or that
there were mitigating circumstances which warrants the upgrade.    

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.

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)                                         AR20120011350



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ABCMR Record of Proceedings (cont)                                         AR20120011350



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