BOARD DATE:	 24 February 2015 

		DOCKET NUMBER:  AR20140012075 


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 his discharge under other than honorable conditions be upgraded. 

2.  The applicant states the loss of his mother in an auto accident at age 11 
caused his nervous condition.  He conveyed his medical condition to his senior officers and they ignored him.  He really tried to get help in the service but they wouldn't help him.  He still has this medical condition and will always have to have treatment for it.  He talked to his captain and motor sergeant about having a hard time handling the service and that he wanted out.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a date of separation of 23 November 1979
* an undated newspaper article
* his mother's obituary

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 11 April 1977, he enlisted in the Regular Army for 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63C (Track Vehicle Mechanic).

3.  On 12 October 1977, he was assigned to the 1st Battalion, 82nd Field Artillery at Fort Hood, TX.  On 12 May 1978, he was assigned to the 5th Battalion, 
7th Cavalry at Fort Hood.

4.  On 5 July 1978, he departed absent without leave (AWOL) and he was dropped from the rolls on 3 August 1978.  On 25 September 1979, he was apprehended by military authorities.

5.  There was no charge sheet in his Military Personnel Records Jacket (MPRJ)  and his separation processing package was not available for review.

6.  On 23 November 1979, the applicant was discharged under the provisions of 
chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service.  He completed 1 year, 4 months, and 19 days of active service that was characterized as under other than honorable conditions.  He had 447 days of time lost.

7.  The undated newspaper article reports that his mother was killed in a car accident.  His mother's obituary indicated she died on 24 November 1971.

8.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

9.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

	b.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR 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 his nervous condition started after losing his mother in an automobile accident when he was 11 years old.  The newspaper clippings he submitted are sufficient to show this incident did occur on 24 November 1971, over 6 years before he enlisted in the Army.  However, there is no evidence that he suffered from a nervous condition prior to or during his enlistment.  There is no evidence that he was unable to perform his military duties due to a nervous condition.  Therefore, this cannot be considered a mitigating factor in determining the characterization of his service.

2.  Although his separation package was not available for review by this Board, in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  He would have been required to consult with defense counsel and to have voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offenses he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.
3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process and the type of discharge and the reason for separation were appropriate.

4.  The fact that he was apprehended by military authorities after 447 days of being AWOL raises doubt as to his intent to return to military jurisdiction of his own volition.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his under other than honorable conditions discharge to either an honorable or a general discharge.

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)                                         AR20140012075



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ABCMR Record of Proceedings (cont)                                         AR20140012075



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