IN THE CASE OF:	  

		BOARD DATE:	    13 August 2013

		DOCKET NUMBER:  AR20120022775 


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 he served honorably in the U.S. Army for 4 years and was promoted to sergeant (SGT)/pay grade E-5.

   a.  He encountered financial and marital problems, his wife left him, and he was unable to cope with the demands of military service.

   b.  He went absent without leave (AWOL) for 62 days because his wife told him they could get back together provided he left military service.  He acknowledges that it was a very big error in judgment that he made.

   c.  He was emotionally distraught when he returned to military control and it was determined he was unsuitable for military service.  He was recommended for separation with an under honorable (general) discharge.  However, he was reduced to private (PVT)/pay grade E-1 and discharged under other than honorable conditions.

   d.  He states that his discharge was too harsh for the one incident of AWOL.  He was never in trouble prior to the incident and he had previously received an honorable discharge.


   e.  After being discharged he attended college and obtained two different associate degrees.  He also worked for the Michigan Department of Corrections for 26 years, achieved the rank of captain, and he recently retired.  He is currently working part-time for a security company.

   f.  He has been married for the last 28 years and has raised 3 children.  He serves as an elder in his church and he has been a productive citizen ever since being discharged from the Army.

3.  The applicant provides copies of three documents from his separation packet and two DD Forms 214 (Reports 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.  A DD Form 214 shows the applicant entered active duty on 8 July 1974 and he was honorably discharged on 23 February 1978 to reenlist in the Regular Army (RA).  He had completed 3 years, 7 months, and 16 days of net active service this period.

3.  The applicant reenlisted in the RA on 24 February 1978 for a period of
6 years.  He was promoted to SGT (E-5) on 11 June 1978.

4.  On 9 January 1979, court-martial charges were preferred against the applicant for being AWOL from 13 October 1978 to 14 December 1978.

5.  The applicant's military personnel records do not contain a copy of his separation packet.

6.  Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center (USAARMC), Fort Knox, KY, Orders 20-1, dated 30 January 1979, reduced the applicant from SGT (E-5) to PVT (E-1) effective 26 January 1979.  The orders show "Authority:  Discharge Certificate Under Other Than Honorable Conditions; Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10 (For The Good of the Service); and Army Regulation 600-200 (Enlisted Personnel Management), paragraph 7-64.

7.  The applicant's DD Form 214 shows he was discharged under other than honorable conditions, on 16 March 1979, under the provisions of Army Regulation 635-200, chapter 10, by reason of an administrative discharge - conduct triable by court-martial.  He completed 10 months and 22 days of net active service this period.

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

9.  The applicant provides copies of the following documents:

   a.  Report of Psychiatric Evaluation that shows a psychologist, serving in the rank of captain, examined the applicant on 2 January 1979.  It also shows:

    	(1)  Diagnosis:  Not Applicable.

    	(2)  He noted the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

    	(3)  The Pertinent History section shows the applicant was (then) demonstrating signs of social/emotional maladjustment to the military.  His inability to cope manifested itself through difficulty concentrating, tearfulness, and severe marital problems.  In addition, he had a defective attitude, lacked motivation to function in the military, and he had been AWOL for 62 days.  Based on the findings and level of functions, prognosis for an adequate adjustment to the military with counseling appeared poor at the time.

    	(4)  Because of the applicant's inability to effect an adequate adjustment to the military, it was recommended that he be considered for separation under the provisions of Army Regulation 635-200, chapter 13 (Unsuitability).

   b.  A second endorsement to the applicant's Request for Discharge for the Good of the Service, dated 17 January 1979, with USAARMC Form 4939 (Characterization of Service Checklist for Administrative Discharge Actions) shows that the Commander, U.S. Army Personnel Control Facility, Lightning Brigade, USAARMC, Fort Knox, KY, recommended approval of the applicant's request for discharge for the good of the service.  He also indicated that, based on the applicant's service and Report of Psychiatric Evaluation, he recommended a General Discharge Certificate.

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

	a.  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 normally 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.

11.  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 that his discharge under other than honorable conditions should be upgraded because he had approximately 4 years of prior honorable active duty service, his discharge was too harsh for the one incident of AWOL, and he has been a productive citizen since being discharged.

2.  Records show a DD Form 214 was issued to document the applicant's period of honorable active duty service from 8 July 1974 through 23 February 1978.

3.  The evidence of record shows the applicant was AWOL from 13 October through 14 December 1978 and that he elected to request discharge in lieu of being court-martialed.

4.  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 directed appears to have been, and still is, appropriate.

5.  The applicant had 62 days (i.e., more than 2 months) of time lost and he completed less than 11 months of his 6-year reenlistment obligation.  Thus, the applicant's service during the period under review 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.  

6.  The applicant's post-service conduct, personal commitment, and service to the community since his discharge were also carefully considered.  The applicant's good post-service conduct and achievements are commendable; however, good post-service conduct alone is not normally sufficient to upgrade a discharge.

7.  Therefore, there is an insufficient 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)                                         AR20120022775



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ABCMR Record of Proceedings (cont)                                         AR20120022775



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