BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160000140 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160000140 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. BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160000140 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 her under other than honorable conditions discharge to a general discharge. 2. The applicant states the type of discharge she received was inequitable/unjust because it was based on one isolated incident. There is no excuse, just very poor judgement on her behalf. She made a stupid and rash decision that she can never take back or undo. 3. The applicant provides: * Certificate of Death * Sacred Heart Hospital Death Summary * Sacred Heart Hospital Consultation * Sacred Heart Hospital Admission History and Physical * Sacred Heart Hospital Radiology Consultation Reports * Sacred Heart Hospital Operative Report 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. With prior honorable Regular Army (RA) enlisted service from 6 January 1997 to 28 April 2000, the applicant enlisted in the RA for 3 years on 6 January 2003. 3. On 27 February 2003, the applicant left her unit in an absent without leave (AWOL) status and remained AWOL until she was apprehended by civil authorities and was taken to the Naval Air Station Brig, Pensacola, FL, on 25 November 2004. 4. A DA Form 4856 (Developmental Counseling Form) shows that on 2 December 2004, the applicant’s company was notified the applicant needed to be picked up at the military police station. The applicant’s unit was informed she was previously assigned to the unit and went AWOL within days of the unit deploying to Kuwait. 5. A DA Form 2823 (Sworn Statement), dated 3 December 2004, shows the applicant stated "last year" her father notified her that her mother had been hospitalized. She was her mother’s primary caregiver and her mother lingered in and out of the hospital until she died on 7 January 2004. She stated her father had suffered two strokes and she had been residing at home since she left the military in 2003. 6. On 19 January 2005, the applicant was notified she was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14-12c, for misconduct – commission of a serious offense with an under other than honorable conditions discharge. Her commander cited AWOL as the basis for the recommendation. She acknowledged receipt of the notification. After consulting with counsel, she waived her right to have her case considered by an administrative separation board. 7. On 24 February 2005, the appropriate authority approved the recommendation and directed the issuance of an under other than honorable conditions discharge. 8. On 4 March 2005, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct with an under other than honorable conditions discharge. She completed 4 months and 15 days of net active service this period. 9. On 28 April 2010, the Army Discharge Review Board denied the applicant's request for an upgrade of her discharge. 10. The applicant provides a Florida Certificate of Death showing her mother died on 7 January 2004. She also provides Sacred Heart Hospital records explaining the circumstances surrounding her mother's death. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 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. DISCUSSION: 1. It appears the applicant is contending she went AWOL to take care of her ill mother. Her willingness and desire to care for her family are admirable. Unfortunately, she decided to leave her unit without authorization to do so, and she did not return to military control and she was apprehended by civil authorities on 25 November 2004, many months after her mother's death. 2. Although the applicant believes the type of discharge she received was inequitable or unjust, the available evidence shows she was AWOL from 27 February 2003 to 25 November 2004. She was discharged under the provisions of Army Regulation 635-200, chapter 14-12c due to misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000140 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000140 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2