BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130004153 


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 kept out of trouble until his father became ill while he was in training.  The American Red Cross notified him of his father's illness and he was allowed to go home on leave.  The applicant states he was incapable of returning from leave due to the nature of his father's illness.  He was reported absent without leave (AWOL).  Upon his return he was confined in the stockade and reassigned to the U.S. Army Retraining Brigade, Fort Riley, KS.  He later received an under other than honorable conditions discharge. 

3.  The applicant states shortly after his discharge his father passed.  His life spiraled into a depression and he drowned himself in drugs and alcohol.  He is now in a recovery treatment program aimed at helping him overcome depression. The applicant states he wants to better his life and the circumstances that brought him to this point.

4.  The applicant provides:

* His father's State of Texas Certificate of Death
* four letters of support




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 13 February 1978.  He successfully completed training and he was awarded military occupational specialty 44B (Metalworker).

3.  On 26 April 1979, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 14 November 1978 through 22 March 1979, disobeying a lawful order, and breaking arrest.

4.  On 3 May 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for sleeping at his post.

5.  On 3 May 1979, the applicant was transferred to the U.S. Army Retraining Brigade, Fort Riley, KS for confinement and retraining.

6.  On 31 May 1979, he accepted NJP under the provisions of Article 15, UCMJ, for two specifications of disobeying a lawful order from a noncommissioned officer.

7.  During the period 3 May through 19 June 1979, the applicant was counseled on numerous occasions for various infractions which included unsatisfactory performance of military skills, and his personal behavior. 

8.  On 21 June 1979, the applicant's unit commander initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33, for misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He stated that the applicant was sent to the U.S. Army Retraining Brigade for the purpose of receiving correctional training necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation.  However, his actions since his arrival precluded the accomplishment of the objective.

9.  On 26 June 1979, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued and that he further understood that as a result of the issuance of a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

10.  On 28 June 1979, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, Chapter 14 for misconduct, with an Under Other Than Honorable Conditions Discharge Certificate.

11.  On 3 July 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 1 year and 28 days of total active service with 113 days of time lost due to being AWOL and in confinement.

12.  The applicant provides letters of support that characterize him as a person taking charge of his alcohol addiction while in the recovery program.  He is changing his life for the better while in treatment for his addiction.

13.  He applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 21 May 1986, the ADRB denied his request.  The ADRB determined the reason for discharge and the character of service were equitable.

14.  Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant's records show he was convicted by a special court-martial, he received two NJP's, and he had a lengthy period of AWOL.  As a result, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general discharge.

3.  The applicant provided letters of support attesting to his positive attitude towards overcoming his addiction.  However, post-service conduct and achievements alone are not normally a sufficient basis for upgrading a discharge.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130004153



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ABCMR Record of Proceedings (cont)                                         AR20130004153



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