IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120012670 


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, in effect, an upgrade of his discharge under other than honorable conditions.

2.  The applicant states it has been 36 years since his discharge and he has completely changed his life around.  He contends he was suffering from bi-polar disorder and depression when he went absent without leave (AWOL).

3.  The applicant provides no additional evidence.

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 30 November 1979.  He completed training as a 16P (Air Defense Artillery Short Range Missile Crewmember).  He was assigned to Battery D, 1st Battalion, 59th Air Defense Artillery, 8th Infantry Division, located in Germany.

3.  The U.S. Army Training Center and Fort Dix, Fort Dix, NJ issued orders on two separate occasions, assigning him to Company A, U.S. Army Personnel Control Facility, Fort Dix, NJ after he surrendered to military authorities at Fort Dix, NJ:

* Orders 311-76, dated 6 November 1980, effective 19 January 1981
* Orders 033-89, dated 2 February 1981, effective 13 October 1980

4.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) contains the following entries:

* 18 July 1980 – 24 July 1980, 7 days AWOL
* 28 August 1980 – 12 October 1980, 46 days AWOL
* 4 November 1980 – 1 January 1981, 59 days AWOL
* 15 January 1981 – 19 January 1981, 4 days AWOL
* 20 January 1981 – 9 February 1981, 21 days AWOL
* 23 February 1981 – 6 March 1981, 11 days AWOL
* 7 March 1981 – 26 May 1983, Confined in the hands of Civil Authorities

5.  His discharge packet was not available; however, his records contain the following documents:

a.  An Agent’s Investigation Report, dated 11 February 1981, which shows
he acknowledged that he prepared a fraudulent DA Form 31 (Request and Authority for Leave) and wrongfully obtained a military identification card bearing another Soldier’s name but with his photograph for the purpose of obtaining casual payments under this fraudulent name.

b.  A Notice of Return of U.S. Army Member from Unauthorized Absence,
dated 18 June 1981.  This document shows he was apprehended by civil authorities on 7 March 1981 and was confined at the Holmesburg County Jail, Holmesburg, PA for the offenses of burglary, receiving stolen goods, theft, and conspiracy.

c.  A memorandum from Headquarters, U.S. Army Training Center, Fort
Dix, Fort Dix, NJ, dated 22 December 1981, and addressed to the applicant at the State Correctional Institution in Graterford, PA.  The memorandum informed the applicant that a board of officers would convene on 14 January 1982 at Fort Dix, NJ to determine if he should be discharged from the service because of civil conviction under the provisions of Army Regulation 635-200 (Separations – Enlisted Personnel), chapter 14.

6.  On 26 May 1983, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, due to his civil conviction.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 months and 7 days of net active service.

7.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

8.  There are no available medical records indicating he suffered from depression or bi-polar disorder.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge under other than honorable conditions.

2.  His contentions that he was suffering from bi-polar disorder and depression when he went AWOL is without merit.  He has failed to provide evidence, and his records do not contain evidence, which support that he suffered from any mental health issues during his periods of absence.  His records show that he was convicted by a civil court of the offenses of burglary, receiving stolen goods, theft, and conspiracy.  Further, he had 148 days of lost time due to AWOL.

3.  Considering the nature of his offenses, he did not serve honorably and a discharge under other than honorable conditions appropriately reflects his overall record of service.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20120012670





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ABCMR Record of Proceedings (cont)                                         AR20120012670



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