IN THE CASE OF:  		  

		BOARD DATE:  9 September 2014	  

		DOCKET NUMBER:  AR20140002045 


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 correction of his military records by upgrading his undesirable discharge to honorable or to general, under honorable conditions.

2.  The applicant states he served 2 years, 9 months, and 27 days with a good record.  He applied for a hardship discharge because his father had died.  He was also reassigned from the Federal Republic of Germany (FRG) to Fort Meade, Maryland.  He was discharged without the use of his records.  He feels he should have been given a hardship discharge.  He further contends that he entered the Army under the buddy plan, but he was never assigned with his buddy as he was promised.  When his father died, he had to get a job to help feed the family.

3.  The applicant provides no additional documentation.

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 25 October 1968, the applicant enlisted in the Regular Army.  He was trained as an armor crewman.

3.  The applicant served in the FRG from May to August 1969 and then he was reassigned to Fort Meade, Maryland.

4.  The applicant was absent without leave (AWOL) from 1 April to 13 July 1971.

5.  On 27 July 1971, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 (AWOL) for the period discussed above.

6.  On 27 July 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

7.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life as a result.

8.  The remainder of the discharge packet is missing from his military records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows, on 2 September 1971, he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an Undesirable Discharge Certificate.  He completed 
2 years, 6 months, and 24 days of creditable active service and he had 104 days of lost time.

9.  On 20 April 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.



10.  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 trial by court-martial.  At the time, an undesirable discharge was 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.  

11.  Army Regulation 15-185 (ABCMR) provides that the Board 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 CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by upgrading his undesirable discharge to honorable because he had more than 
2 years of good service and he should have been given a hardship discharge.

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.  The character of the discharge is commensurate with his overall record.

3.  There is no available evidence of record showing the applicant applied for and was denied a discharge due to a family hardship. 

4.  The applicant’s lengthy period of lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

5.  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.

ABCMR Record of Proceedings (cont)                                         AR20130021516



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140002045



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1