BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140009077 


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, in effect, an upgrade of his discharge under other than honorable conditions.

2.  The applicant states:

* he was going through a divorce and having a hard time dealing with it
* he was absent without leave (AWOL) because of his failed marriage
* they didn't offer counseling back then
* he was a good Soldier until this episode
* he knows he didn't handle his divorce very well, but that shouldn't erase all the good things he accomplished 

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 2 May 1975 for 4 years.  He completed his training and was awarded military occupational specialty 13B (cannon crewman).  He attained the rank of specialist four on 1 October 1977.

3.  In July 1978, nonjudicial punishment (NJP) was imposed against him for failing to obey a lawful order.

4.  In January 1979, NJP was imposed against him for being AWOL from 2 November 1978 to 30 December 1978.

5.  The available records contain an incomplete charge sheet.  However, his records show he was AWOL from 5 February 1979 to 14 March 1979 and from 16 March 1979 to 22 March 1979.

6.  A DA Form 2496-1 (Disposition Form), dated 18 April 1979, shows he requested excess leave because he did not feel he could serve honorably while awaiting his discharge for the good of the service.

7.  His records are void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions on 30 April 1979 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 3 years, 8 months, and 17 days of creditable active service with 102 days of lost time.

8.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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 was AWOL due to his failed marriage; however, marital problems alone are normally not a basis for upgrading a discharge.

2.  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.

3.  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)                                         AR20140009077



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ABCMR Record of Proceedings (cont)                                         AR20140009077



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