IN THE CASE OF:	  

		BOARD DATE:	  3 September 2014

		DOCKET NUMBER:  AR20140000292 


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.

2.  The applicant states:

	a.  Due to a severe illness in his immediate family, he needed to return home to help the family through the trying time.  After discussing the matters with his chain of command, it was decided that he would not return home.  He was unable to focus on the duties that were given to him.

	b.  He has been a model citizen since the end of his service.  He received multiple letters of commendation during his tenure in the military.  He was a contributing member of his command.

	c.  This characterization of service was decided by one small part of his service and does not take his whole performance into account.  He tried to conduct himself as a responsible service member by utilizing his chain of command to receive assistance with his family situation and at no time did he ever desert his post.  His focus was with his family, as a responsible adult, and he was unable to fully focus on his duties as a service member.  He was deemed as refusing to follow orders and was discharged under other than honorable conditions.

3.  The applicant provides no additional evidence.

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 6 September 1978 for a period of 4 years.  He completed his training and was awarded military occupational specialty 62B (construction equipment repairer).

3.  In June 1980, nonjudicial punishment was imposed against him for using disrespectful language and deportment.

4.  His records are void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions on 6 November 1980 in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed a total of 2 years, 2 months, and 1 day of creditable active service.

5.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  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.  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.  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 contends he needed to return home to help his family through a trying time due to a severe illness in his immediate family.  However, family problems alone are normally not a basis for upgrading a discharge.

2.  He contends he has been a model citizen since his discharge.  However, good post-service conduct alone is not a basis for upgrading a discharge.

3.  In the absence of evidence to the contrary, it must be presumed that his separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet to consider, it is presumed the authority and reason for his discharge were commensurate with his overall record of service.

4.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20140000292



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ABCMR Record of Proceedings (cont)                                         AR20140000292



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