BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140013669 


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 general under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect:

* his mother was sick at the time with ulcerative colitis and his father had died 6 days after he entered active duty
* as the only child, he requested a compassionate reassignment to Fort Riley, KS to be closer to his mother; his request was denied
* because he felt this decision was unfair and he needed to be with his mother, he absented himself without authority from his unit 
* today, this would have been handled as a hardship discharge, but he was instead given a general discharge under paragraph 5-37 (Discharge for failure to demonstrate promotion potential), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel)

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* letter, dated 22 August 1975, from a doctor confirming the illness of the applicant's mother
* purchase order and payment agreement from a funeral home showing funeral expenses for the burial of the applicant's father
* letter, undated, from the applicant's mother requesting the applicant's reassignment to a location closer to home
* letter, dated 11 September 1975, to his Congressional Representative  requesting assistance in securing reassignment to Fort Riley
* letter, dated 6 November 1975, by a Congressional Representative requesting assistance for the applicant

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 10 February 1975 and, following initial training, he was awarded military occupational specialty 76X (Subsistence Supply Specialist).  The highest rank/grade he held was private/E-2.

3.  His first assignment following initial training was to Fort Hood, TX.  While at Fort Hood, he requested a compassionate reassignment to Fort Riley, KS based upon family hardship (his father died, his mother was ill, and he was the only son).  His request was denied.

4.  He took leave and, on 16 September 1975, he was placed in an AWOL status.  He was dropped from the rolls as a deserter on 2 October 1975 and, on 31 October 1975, after being apprehended by civil authorities, he was returned to military control.  He was reassigned to the U.S. Army Personnel Control Facility at Fort Carson, CO, with a follow-on assignment to Fort Bragg, NC.

5.  Available records indicate the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on three occasions:

* on 14 April 1975, for one specification of being absent without leave (AWOL) from 0900 hours, 6 April 1975, to 1730 hours, 6 April 1975


* on 14 November 1975, for one specification of being AWOL from 
16 September 1975 to 30 October 1975; the punishment included reduction in rank to private/E-1
* on 20 November 1975, for one specification of breaking restriction

6.  On 31 December 1975, his commander initiated separation action under the provisions of paragraph 5-37 (Discharge for failure to demonstrate promotion potential), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

	a.  The applicant was informed the basis of his commander's action was that his work performance was consistently below that of his peers, despite repeated counseling.

	b.  The applicant was further told he would be recommended for a general discharge under honorable conditions and would have the opportunity to consult with legal counsel as well as to submit statements in his own behalf.

7.  On 2 January 1976, the applicant consulted with legal counsel and waived his right to present a statement.  He stated he understood he could expect to encounter substantial prejudice in civilian life by accepting a general discharge.

8.  In a 1st indorsement, dated 2 January 1975, the applicant's battalion commander essentially confirmed what the applicant contends were the reasons for going AWOL.  The commander noted the applicant was not a bad Soldier, but rather was totally convinced his place was at home with his mother.  He stated, in effect, approving the unit commander's discharge request would be in the best interest of both the Soldier and the Army.

9.  On 9 January 1976, the separation authority approved the commander's recommendation and directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-37.  He also directed that the applicant be issued a general discharge under honorable conditions.  On 10 February 1976, the applicant was discharged accordingly.

10.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37 and received a general discharge under honorable conditions.  It further shows he completed 9 months and 21 days of creditable net active service with 45 days of lost time.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
	a.  Chapter 5-37, in effect at the time, states personnel whose duty performance, acceptability for the Service, and potential for continued effective service fall below the standards required for Army enlisted personnel may be separated under this provision.  Discharge is limited to:

* personnel who fail to advance to private/E-2 after 4 months on active duty and 
* those who fail to demonstrate the potential to justify advancement to the grade of private first class/E-3 after attaining the normal time-in-service and time-in-grade criterion

	b.  Paragraph 3-7a, currently in effect, 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, currently in effect, 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.  Although the evidence of record indicates there were mitigating reasons behind at least one period of AWOL, it also clearly shows the applicant's conduct and duty performance did not meet the acceptable standards required of enlisted personnel.  Accordingly, his immediate commander initiated separation action.  He was advised of his rights and consented to the discharge action.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which might have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 

3.  Based upon the foregoing, there is insufficient evidence upon which to grant the 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 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)                                         AR20140013669





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ABCMR Record of Proceedings (cont)                                         AR20140013669



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