IN THE CASE OF:

		BOARD DATE:  4 February 2014

		DOCKET NUMBER:  AR20130009269


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 undesirable discharge to general under honorable conditions.  He also disputes the following periods of unauthorized absence:

* 5-8 February 1977
* 2-4 June 1978
* 6-8 June 1978

2.  The applicant states:

	a.  In 1978 while stationed in Germany, he received word of an emergency at home.  His mother had been involved in an accident.  She was seriously injured and hospitalized and another family member was killed.  His request for emergency leave was denied.

	b.  He was scheduled to be off duty for a few days and went home to see his mother at his own expense.  It was never his intent to be absent without leave (AWOL), but he lacked the money to return to Germany and was declared AWOL.

	c.  Once back to Germany his commander told him he could be released with a less than honorable discharge and after 6 months it would be changed to a general discharge.  This change never happened.

	d.  While serving in Germany he was injured due to an explosion.  He was out with friends when a bomb exploded injuring his right leg.  He returned to his base and shrapnel pieces were removed from his leg.  The dressing was changed daily for about 3 weeks.  Occasionally he experiences "flare-ups" from this injury.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 9 May 2013.

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 28 June 1976.  He completed training and was awarded military occupational specialty 19E (Armor Crewman).

3.  He was assigned to units at Fort Hood, Texas, and in Germany.  The highest rank he attained was private first class/E-3.

4.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows:

* 5-8 February 1977
* 2-4 June 1978
* 6-8 June 1978
* 11 August-8 September 1978
* 9 September-10 October 1978

5.  His records show he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on eight occasions between 26 February 1977 and 18 October 1978.

6.  On 9 November 1978, his immediate commander recommended his separation for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to frequent incidents of a discreditable nature with civil or military authorities.  The commander stated the applicant had been counseled on four occasions and had been AWOL much of the time since his rehabilitative transfer to his current to his unit.  He also stated the applicant had a lackadaisical attitude and required constant supervision. 

7.  The applicant consulted with counsel and he waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement in his own behalf.

8.  The battalion and brigade commanders each recommended approval of the discharge.

9.  On 11 December 1978, the separation authority approved the separation action and directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and issuance of a DD Form 794A (Discharge Certificate under Other Than Honorable Conditions).

10.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 11 January 1979 with his service characterized as under conditions other than honorable.  He completed 2 years, 4 months, and 2 days of net active service during this period with 71 days of lost time.

11.  In June 1988, the Army Discharge Review Board (ADRB) denied his request for a change in the character and/or reason for discharge.  The ADRB determined he was properly and equitably discharged.

12.  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 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 3-7b states 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 did not provide any evidence to support his assertions that his discharge would be changed to general in 6 months or that the disputed AWOL dates are not correct.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  The applicant’s record of misconduct clearly shows frequent incidents of a discreditable nature.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20110025102



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009269



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1