IN THE CASE OF:	  

		BOARD DATE:	 7 April 2015 

		DOCKET NUMBER:  AR20140014045 


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 discharge under other than honorable conditions from the U.S. Army Reserve (USAR) to honorable and a change to his reason for separation.

2.  The applicant states:

* his discharge should be changed due to his circumstances and situation at the time
* he missed annual training with his USAR unit because his mother was dying of cancer
* she was very ill and he went to stay with her at her home
* he notified his platoon sergeant and squad leader by telephone and was told not to worry about it
* he was told he would be afforded the opportunity to make up the missed drill days and that the noncommissioned officers above him would take care of it
* the following month he received his discharge paper work in the mail
* he loves the Army and loves his country
* he was not given a chance to provide the proper documents showing his situation at the time

3.  The applicant provides:

* Headquarters, 416th Theater Engineer Command, Orders 10-050-00010, dated 19 February 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter from Dr. T____ D. F____, dated 11 January 2011
* letter from Dr. J____ W. G____, dated 12 January 2011

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 15 October 2007, the applicant enlisted in the USAR.  He completed basic combat training and advanced individual training and was released from active duty to the control of his USAR unit.  He was issued a DD Form 214 covering the period 24 October 2007 through 18 April 2008.

3.  Headquarters, 416th Theater Engineer Command, Orders 10-050-00010, dated 19 February 2010, reduced the applicant in rank from private first class/E-3 to private/E-1 under the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-15, and discharged him from the USAR under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations).  His service was characterized as under other than honorable conditions.

4.  The facts and circumstances surrounding the applicant's discharge are not in his available records and he has not provided them with his application.  The applicant claims he missed annual training to care for his mother while she was dying of cancer and was subsequently discharged.

5.  On 19 February 2010, the applicant appealed to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  At that time, he claimed he missed too many unit training dates due to circumstances with his wife, loss of job, and loss of home, but he turned his life around and wanted a second chance.  On 27 April 2011, the ADRB denied his request, determining he had been properly and equitably discharged.
6.  The applicant provided two letters from medical doctors, dated 11 months after his USAR discharge, addressing the illnesses of Ms. L____ S____ (presumably the applicant's mother).

	a.  The letter from Dr. T____ D. F____, dated 11 January 2011, stated:

* L____ S____ was diagnosed with breast cancer, which was in remission at the time of the letter
* she became physically disabled over the past several years due to a wasting-type syndrome
* she had muscle weakness, chronic pain, and was unable to work
* from the doctor's perspective, she was 100-percent disabled

	b.  The letter from Dr. J____ W. G____, dated 12 January 2011, stated:

* Mrs. S____ was diagnosed with diabetic polyneuropathy (damage affecting peripheral nerves) and was unstable walking and using a walker
* she reported falling three or four times a month despite the use of a walker
* she was numb and had coordination difficulties with her hands
* she was taking medication which decreased cognitive abilities and caused sedation
* in the doctor's opinion, she was totally disabled and would remain so indefinitely

7.  Army Regulation 135-178 provides for the separation of enlisted personnel of the U.S. Army Reserve and Army National Guard.  It states an honorable character of service is appropriate when the quality of the Soldier's service generally meets the standards of acceptable conduct and performance of duty for military personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when significant negative aspects of the Soldier's conduct or performance outweigh positive aspects of the Soldier's military record.  Service may be characterized as under other than honorable conditions only when the discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions to honorable and a change to his reason for discharge was carefully considered but found to be without merit.

2.  The specific facts and circumstances surrounding his discharge are not available for review.  There is no evidence of record and the applicant has not provided any showing that either the reason for his discharge or the characterization of his discharge was in error.

3.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met, his rights were fully protected throughout the separation process, and that the quality of his service did not meet the standards of acceptable conduct and performance of duty to merit an honorable or general under honorable conditions character of service.

4.  The applicant provided two letters from medical doctors, dated nearly 1 year after his USAR discharge, attesting to his mother's poor health and disability, but they do not speak to the applicant's role in his mother's care.  The applicant has not provided any evidence that he sought the help of his chain of command in resolving his family issues at the time and mitigating any resulting lost time at required training.

5.  In view of the foregoing evidence, he is not entitled to the relief requested.

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)                                         AR20140014045



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ABCMR Record of Proceedings (cont)                                         AR20140014045



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