IN THE CASE OF:	  

		BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20140010142 


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 that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states he requested a hardship discharge due to his father being diagnosed with emphysema and the applicant was needed to return home to run the family business.  He had enlisted, at age 17, prior to his father's illness and had served in Korea for a year.  He was approved for two weeks emergency leave and thought his request for a hardship discharge had been granted because members of his command bid him goodbye.  His paper work did not come through but he did not think about it until several years later.  He was told to report to the Federal Court House in Montgomery, AL where he was told he had been absent without leave (AWOL).  He was made to sign a request for discharge or face court-martial.  He signed it and left.

3.  The applicant provides his DD Form 214 (Report of Transfer or Discharge) and his DA Form 20 (Enlisted Qualification Record).

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.  At age 17, the applicant enlisted in the Regular Army on 11 September 1968, completed training, and was awarded the military occupational specialty 63B (Wheeled Vehicle Repairman).

3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice for being AWOL 14 – 16 February 1969.

4.  He served in Korea from 8 April 1969 through 7 May 1970.

5.  On 21 July 1970, the applicant submitted an informal request for a hardship discharge with supporting documentation of his father's health problems.  He submitted his formal hardship discharge application on 17 August 1970 with his chain of command's last endorsement being signed on 25 August 1970.

6.  On 28 August 1970, he was granted two weeks emergency leave.

7.  On 10 September 1970, the 30th Artillery Regiment Assistant Adjutant General prepared a memorandum directing that the applicant be advised that his request for a hardship discharge been denied by Headquarters, Department of the Army (HQDA).  The record contains no evidence that the applicant was notified of the HQDA denial. 

8.  The applicant failed to return following the expiration of his leave period and was declared AWOL effective 11 September 1970.  

9.  On 15 October 1970, the applicant's command notified the applicant's father that the applicant was AWOL and urged him to have his son return to military control.

10.  A 5 November 1970 Commander's Inquiry states that the applicant had told another Soldier that he was not coming back.

11.  The applicant returned to military control on 12 March 1972.


12.  The record does not contain a copy of the discharge processing documentation.  The applicant's 20 April 1972 DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 with a UD.  He had 2 years, 2 months, and 1 day of creditable service with 524 days of lost time (340 days before his end term of service (ETS) and 184 days post–ETS).  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A under other than honorable conditions discharge is normally considered appropriate.  At the time a UD was normally considered appropriate.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records), states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type and character of the discharge is commensurate with the reason for his discharge.

2.  The applicant's local chain of command had recommended approval of his hardship discharge request and granted him emergency leave.  However, the final decision rested with HQDA.  HQDA denied his request with notification to his command of the denial the day before his leave was to expire.  
3.  Since the applicant's entire local chain of command had recommended approval of his discharge request and it is unlikely he received the HQDA denial notice before his leave expired, the applicant had a valid reason to believe his request had been granted.  

4.  However, he would have been aware that something was wrong when, in October 1970, his father was notified that the applicant was considered to be AWOL.  The applicant did not return to military control for another 16 months following that notice.  

5.  In the absence of evidence to the contrary, the discharge process must be presumed to have been in accordance with applicable law and regulations and the applicant's service appropriately characterized.

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)                                         AR20140010142



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ABCMR Record of Proceedings (cont)                                         AR20140010142



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