IN THE CASE OF:

		BOARD DATE: 28 July 2015

		DOCKET NUMBER:  AR20150000178


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, in effect, correction of his military records by upgrading his undesirable discharge to an honorable discharge.
   
2.  The applicant states, in effect, his mother was very sick and he was needed at home.  He argues that he received an undesirable discharge because he had to be at home to care for his mother.

3.  The applicant provides no additional documentation.

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 29 November 1978, the applicant enlisted in the Regular Army.  He completed his initial training as a military policeman.

3.  On 28 March 1978, the applicant departed Fort McClellan, Alabama, for duty at Fort Leavenworth, Kansas.  On 20 September 1979, he was further assigned to Fort Belvoir, Virginia.

4.  The applicant accepted the following nonjudicial punishments:

	a.  On 23 November 1979, for violation of Article 86, Uniform Code of Military Justice (UCMJ) for failure to go to his appointed place of duty at the prescribed time; and for violation of Article 91 for willfully disobeying a lawful order from a noncommissioned officer; and

	b.  On 13 February 1980, for violation of Article 86, UCMJ, for being absent without leave (AWOL) during 4-6 February 1980; and for violation of Article 90 (two specifications) for willfully disobeying a lawful order from two different commissioned officers.

5.  On or about 18 March 1980, charges were initiated against the applicant for violation of Article 86 for being AWOL from on or about 22 February to 11 March 1980.

6.  The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows he was AWOL a total of 63 days as follows:

* 5 February 1980 (1 day)
* 22 February to 10 March 1980 (18 days)
* 15 March to 28 April 1980 (44 days)

7.  The discharge packet is missing from his military records.  However, his Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he was administratively discharged on 27 June 1980, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He completed 
1 year, 4 months, and 25 days of creditable active service.  He also had 63 days of lost time.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.



9.  Army Regulation 635-200:

	a.  Chapter 10 of that regulation provides 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 discharge under other than honorable conditions was normally considered appropriate.  

	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board 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 that his military records should be corrected to show his undesirable discharge was upgraded to honorable because he was needed at home to care for his sick mother.

2.  In the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the service is commensurate with his overall record.

3.  Notwithstanding the applicant's assertion that he had to be at home to care for his mother, there is no available evidence showing he had any mitigating circumstances or that his AWOL was a reasonable solution for his circumstances.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His lost time rendered his service unsatisfactory.  

5.  In view of the foregoing, the applicant's request to upgrade his administrative discharge should be denied.

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)                                         AR20110020309



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ABCMR Record of Proceedings (cont)                                         AR20150000178



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