IN THE CASE OF:	  

		BOARD DATE:	    7 November 2013

		DOCKET NUMBER:  AR20130003614 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he enlisted in the Army in 1980 and, after completing basic training, he got married.

   a.  About three months later he learned that his wife was having an affair with his squad leader.  He went into a severe depression and divorced her in 1985.

   b.  Since then he has suffered from depression, anger management issues, and panic attacks.  These issues have prevented him from holding a job and he is unable access veterans' benefits due the type of discharge he received.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 in the Regular Army on 16 June 1980 for a period of 
3 years and he was awarded military occupational specialty 12B (Combat Engineer).  On 8 October 1980, he was assigned to Headquarters and Headquarters Company, 1st Engineer Battalion, Fort Riley, KS.

3.  Four DA Forms 4187 (Personnel Actions) show:

* on 18 February 1981, the applicant went absent without leave (AWOL) after being read a field grade Article 15 for possession of marijuana
* on 24 February 1981, he turned himself in to military authorities at Westover Air Force Base, Springfield, MA
* on 3 March 1981, he refused to accept a transportation request to travel to Fort Riley and he again went AWOL
* on 1 May 1981, he was apprehended by civil authorities and returned to military control

4.  The applicant's military personnel records do not contain a final DD Form 458 (Charge Sheet) or a complete copy of his separation packet.

5.  U.S. Army Training Center, Fort Dix, NJ, Orders 160-193, dated 9 June 1981, discharged the applicant from the Regular Army effective 9 June 1981.

6.  The applicant's DD Form 214 shows he entered active duty on 16 June 1980 and he was discharged under other than honorable conditions on 9 June 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He completed 9 months and 5 days of net active service this period.

7.  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.

8.  Army Regulation 635-200, in effect at the time, 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, 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 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.

9.  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 CONCLUSION:

1.  The applicant contends that his discharge should be upgraded to an honorable discharge because he experienced personal problems that led to his discharge.  However, his contention alone is insufficient as a basis for granting the requested relief.

2.  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, in the absence of evidence to the contrary, the type of discharge directed is presumed to have been, and still is, appropriate.

3.  The evidence of record shows that after completing training the applicant was assigned to his first permanent duty station and he went AWOL about 3 months later.  The evidence of record also shows that he refused to return to his unit when he was given the opportunity to do so.  In addition, he returned to military control only after being apprehended by civil authorities.  Moreover, the applicant completed only about 9 months of his 3-year enlistment obligation.


4.  Therefore, in view of the foregoing, 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.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

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)                                         AR20130003614



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ABCMR Record of Proceedings (cont)                                         AR20130003614



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