IN THE CASE OF:	   

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150002796 


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 to honorable.

2.  The applicant states:

* he was going through marital problems while serving on active duty and was unable to get help or counseling for his problems
* as his marriage deteriorated, he began to misuse alcohol and drugs which led to being late for formations and other infractions
* had he gotten the help he needed at the time, he would have been better able to cope with his situation and not abused drugs and alcohol

3.  The applicant provides no additional evidence.

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 9 September 1974.

3.  His records contain multiple DA Forms 4187 (Personnel Action) documenting his duty status changes as follows:

* on 23 June 1975 – from present for duty (PDY) to absent without leave (AWOL)
* on 22 July 1975 – from AWOL to dropped from the rolls (DFR)
* on 3 August 1975 – from DFR to PDY
* on 18 August 1975 – from PDY to AWOL
* on 18 August 1975 – from AWOL to DFR
* on 27 August 1975 – from DFR to PDY
* on 8 September 1975 – from PDY to AWOL
* on 8 September 1975 – from AWOL to DFR
* on 11 September 1975 – from DFR to PDY
* on 6 October 1975 – from PDY to AWOL
* on 6 October 1975 – from AWOL to DFR

4.  A DD Form 458 (Charge Sheet), dated 23 September 1975, shows he was charged with three specifications of violating the Uniform Code of Military Justice for being AWOL from 23 June 1975 through 3 August 1975, from 18 August 1975 through 27 August 1975, and from 8 September 1975 through 11 September 1975.

5.  A DA Form 3975 (Military Police Report), dated 12 December 1975, shows the applicant was AWOL on 6 October 1975, he was apprehended by civilian police on 12 December 1975, and he was returned to military control on 15 December 1975.

6.  The facts and circumstances surrounding his discharge are not in his available records for review.

7.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 2 February 1976 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for conduct triable by court-martial.  He was credited with 1 year and 8 days of net active service.  Item 27 (Remarks) shows he had five periods of AWOL from 20 January 1975 through 29 January 1975, from 23 June 1975 through 4 August 1975, from 18 August 1975 through 26 August 1975, from 8 September 1975 through 10 September 1975, and from 6 October 1975 through 15 December 1975, totaling 136 days of lost time.  His character of service was listed as under other than honorable conditions.

8.  There is no evidence of record indicating he sought assistance from his chain of command or the medical community with his marital problems and/or his drug and alcohol abuse.

9.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized sentence includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is 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 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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR 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's request for an upgrade of his discharge under other than honorable conditions was carefully considered.

2.  His records show he was charged with three specifications of being AWOL, and was AWOL on one additional occasion totaling 136 days of lost time.  These are offenses punishable under the Uniform Code of Military Justice with a punitive discharge.

3.  The complete facts and circumstances pertaining to his discharge are not available for review.  It is incumbent upon the applicant to provide a compelling argument supported by corroborating documentation to show his records are in need of correction based on an injustice or inequity.  In the absence of such evidence, administrative regularity is presumed regarding his administrative discharge.

4.  Although the applicant claims to have been unable to receive assistance for his marital problems as well as his drug and alcohol abuse, there is no evidence of record and he has not provided any showing he sought and was denied assistance.

5.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting him an honorable or a general 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 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)                                         AR20150002796



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ABCMR Record of Proceedings (cont)                                         AR20150002796



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