BOARD DATE: 7 January 2014
DOCKET NUMBER: AR20130008285
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 that his general, under honorable conditions discharge be upgraded to honorable.
2. The applicant states he is trying to keep his insurance but the company will not continue his coverage because he has a general discharge.
3. The applicant provides a copy of the cancellation letter from his insurance company.
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. On 21 April 1970, the applicant was inducted into the Army of the United States. He completed his initial training and was awarded military occupational specialty (MOS) 64B (Heavy Vehicle Driver).
3. On 28 August 1970, the applicant departed Fort Polk, LA for duty in the Federal Republic of Germany.
a. On 28 January 1971, he accepted nonjudicial punishment (NJP) for missing morning formation and not reporting to his place of duty.
b. On 20 February 1971, he accepted NJP for violating a lawful order by consorting with a female in the barracks.
4. The applicant's discharge packet is missing from his military records. However, a letter is on file in his records that states on 29 November 1972, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. The actual notice was not provided to him at the time of his discharge because he was absent without leave (AWOL). The letter indicates that he was provided copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and his DD Form 258A (Undesirable Discharge Certificate).
5. The applicant's DD Form 214, effective 29 November 1972, shows that he was administratively discharged for the good of the service. His service was characterized as under conditions other than honorable. He completed
10 months and 26 days of creditable active duty service and had 199 days of lost time due to AWOL.
6. On 28 October 1980, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge. The ADRB unanimously agreed that the applicant's discharge was proper, but was not equitable. This decision was reached after careful review of the applicant's record, his contentions, his testimony, and a review of the discharge process. The ADRB noted that the applicant received no NJPs or courts-martial prior to the time he requested discharge under the provisions of chapter 10 in lieu of court-martial for being AWOL for an extended period of 199 days. The ADRB also noted that the applicant had honorable service for approximately 14 months, that he had attained the rank of specialist four, pay grade E-4, and that his conduct and efficiency ratings were excellent. The ADRB was convinced that his family problems were a contributing factor to his AWOL. Accordingly, the ADRB voted to grant him partial relief in the form of a general discharge.
7. The applicant was reissued a DD Form 214 reflecting the decision of the ADRB. It shows his characterization of service as under honorable conditions. The narrative reason for his discharge is administrative discharge - conduct triable by court-martial. He had 199 days of lost time.
8. Under the Uniform Code of Military Justice, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days, is a dishonorable discharge and confinement for 1 year.
9. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 10 of that regulation 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 trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate.
b. It further 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his general, under honorable conditions discharge should be upgraded to honorable because he is being denied insurance.
2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.
3. Subsequent to his discharge, the ADRB considered the applicant's overall record and decided that his undesirable discharge was not equitable. Therefore, it voted to upgrade the characterization of his service to general, under honorable conditions.
4. No new evidence or argument has been provided to show that what the ADRB did was insufficient or that the applicant's last period of service warranted an honorable characterization of service.
5. The applicant's desire to obtain insurance is not a valid basis to justify an upgrade of his discharge.
6. In view of the foregoing, the applicant's 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.
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