IN THE CASE OF:    

		BOARD DATE:  28 April 2015	  

		DOCKET NUMBER:  AR20140015146 


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 characterization of service from under other than honorable conditions to under honorable conditions (general).

2.  The applicant states he went absent without leave (AWOL) in 1977 after being franticly contacted by his mother stating that she needed help separating from and divorcing his father.  She needed him to testify in court that his father was physically beating her.  He left his post without permission.  He feels an upgrade of his characterization of service is warranted because he was AWOL due to an honest mistake in judgment he made when he was extremely young.  He needed to help his mother find safety.  Now he needs medical care from the Department of Veterans Affairs (VA) and does not feel his mistake should prevent him from receiving VA medical care.

3.  The applicant provides a copy of his mother's divorce decree, dated 
19 February 1974.

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's parents were married on 8 June 1958 and the applicant was born on 24 August 1958.  

3.  He provided a copy of his mother's divorce decree, dated 19 February 1974, which shows the court found the applicant's father guilty of extreme and repeated mental cruelty and awarded his mother a divorce on this basis.  Additionally, his mother was awarded sole custody of three minor children, listed by name and including the applicant.  He was 15 years old on the date his mother's divorce was finalized.  

4.  He enlisted in the Regular Army on 1 October 1975 at the age of 17 years and held military occupational specialty 12F (Tracked Combat Engineer).  The highest rank/grade he attained while serving on active duty was private 
(PV2)/E-2.

5.  His record contains an extensive history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice.

	a.  On 4 November 1976, he accepted NJP for wrongfully possessing one ounce (more or less) of hashish.

	b.  On 4 March 1977, he accepted NJP for being AWOL from on or about:

* 11 to 22 November 1976 (12 days)
* 1 to 6 December 1976 (6 days)
* 11 to 24 January 1977 (14 days)
* 1 to 14 February 1977 (14 days)

	c.  On 31 March 1977, he accepted NJP for failing to go to his appointed place of duty:

* the battalion dining facility, on 20 March 1977
* the morning formation, on 22 March 1977

6.  Court-martial charges were preferred again him in April 1977.  He was charged with being AWOL from 4 April to 18 July 1977.

7.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record contains a DD Form 214 that shows he was discharged on 21 July 1977 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and received an under other than honorable conditions discharge.  This form shows he completed 1 year, 6 months, and 3 days of creditable active military service with 104 days of lost time.

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

9.  Army Regulation 635-200 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.  Additionally, 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's contention that his discharge should be upgraded because he went AWOL in 1977 to help his mother with her divorce and to testify against his father lacks merit.  He was 15 years old at the time of his parents' divorce in 1974 and he was listed among the minor children.    

2.  The evidence of record shows he was age 17 at the time of enlistment and he was almost age 19 at the time he committed the AWOL offense that resulted in court-martial charges being preferred against him.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army for the good of the service.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no evidence that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment.  Absent evidence to the contrary, regularity must be presumed in this case.

4.  His record contains a series of NJP for possession of illegal drugs, failure to report, and for being AWOL.  He accumulated 104 days of lost time; therefore, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant either a general or an honorable discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20140015146



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ABCMR Record of Proceedings (cont)                                         AR20140015146



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