IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120012576 


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 discharge.

2.  The applicant states he received a general discharge on 5 December 1975 and he received a letter on 10 July 2010 informing him that he had a dishonorable discharge without any explanation as to why.  When he went absent without leave (AWOL) he had just gotten married.

3.  The applicant provides a letter from the Department of Veterans Affairs (VA), dated 10 July 2010; his marriage license; and a one-page letter explaining his circumstances.

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 in Los Angeles, California, with a moral waiver on 29 November 1973 for a period of 3 years under the airborne enlistment option.

3.  He completed basic training at Fort Polk, Louisiana; advanced individual training as a food service specialist at Fort Jackson, South Carolina; and airborne training at Fort Benning, Georgia; before being transferred to Fort Bragg, North Carolina.  He was married in Los Angeles, California, on 18 May 1974.

4.  On 19 July 1974, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 22 June to 11 July 1974.

5.  On 17 June 1975, he was convicted by a special court-martial at Fort Ord, California, of being AWOL from 31 January to 7 March 1975 and from 13 March to 23 April 1975.  He was sentenced to confinement at hard labor for 30 days, forfeiture of pay, and reduction to pay grade E-1.  He was transferred to the U.S. Army Retraining Brigade at Fort Riley to serve his sentence.

6.  On 29 October 1975 while assigned to the U.S. Army Retraining Brigade, NJP was imposed against him for disobeying a lawful order from a superior commissioned officer.

7.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the VA in Waco, Texas, on 16 March 1976.  However; his records do contain a duly-authenticated DD Form 214 that was also signed by the applicant which shows he was discharged under other than honorable conditions for unfitness on 5 December 1975 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5a(1), due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He completed 1 year, 8 months, and 2 days of active service and had 125 days of lost time due to AWOL and confinement.

8.  There is no evidence in the available records which shows he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, established the policy and prescribed procedures for separating members for unfitness that included frequent involvement in incidents of a discreditable nature with civil or military authorities.  It provided that action would be taken to separate a member for unfitness when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was then and is currently normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were therefore appropriate considering all of the available facts of the case.

3.  The applicant's contentions and supporting documents have been noted.   However, they are not sufficiently mitigating to warrant relief when compared to the frequency of his misconduct and his overall record of undistinguished service.

4.  Additionally, the evidence of record shows no evidence of the applicant ever being awarded anything other than an under other than honorable discharge and the applicant failed to provide evidence to show otherwise.  The Board does not have any authority over the terminology used by the VA or its laws and regulations.  Accordingly, he should address his issues regarding his VA benefits with that agency.

5.  Therefore, there appears to be no basis to grant his request for an upgrade of his 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 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)                                         AR20120012576



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ABCMR Record of Proceedings (cont)                                         AR20120012576



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