BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160003261 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: 12 September 2017 DOCKET NUMBER: AR20160003261 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: 12 September 2017 DOCKET NUMBER: AR20160003261 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 his under other than honorable conditions discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. 2. The applicant states, in effect, his discharge is unjustified. After completing a hardship tour, he sought a 6 month period of stabilization so he could relocate his family after his wife gave birth to their child. He went absent without leave (AWOL) so he could help his wife. He feels he should be eligible for benefits for his service. 3. The applicant provides a letter written to the Department of Veterans Affairs (VA), Janesville, WI, and a Standard Form 180 (Request Pertaining to Military Records). 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 15 January 2002. After completing his initial entry training, he was awarded military occupational specialty 11B (Infantryman). He served in Korea as his first duty assignment from 25 June 2002 through 24 June 2003. 3. Following his period of service in the Republic of Korea, the applicant was assigned to Headquarters and Headquarters Troop, 2nd Squadron, 9th Cavalry Regiment, Fort Carson, CO. 4. A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 31 January 2005, shows the applicant was reported AWOL on 31 July 2003 and reported as a deserter on 13 August 2003. This document also show he had been AWOL since being assigned (to the unit); he had not in-processed since the squadron was deployed at the time. 5. The applicant's record contains DA Forms 4187 (Personnel Action) that show he was reported in an AWOL status on 13 July 2003, he was dropped from the rolls (DFR) of the Army effective 13 August 2003, and he was returned to military control effective 21 August 2003. 6. The applicant's record contains a second set of DA Forms 4187 that show he was reported AWOL a second time effective 30 September 2003, and he was returned to military control effective 18 January 2006. 7. A DA Form 3822-R (Report of Mental Status Evaluation) shows he underwent a mental status evaluation on 19 January 2006. He was determined to be alert and oriented. His affect and mood were appropriate and he had the mental capacity to understand and participate in proceedings deemed appropriate by his command. He was mentally responsible and met medical retention requirements. 8. The applicant's immediate commander informed him, on or about 31 January 2006, of his intent to separate the applicant under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense, with an under other than honorable conditions characterization of service. His commander cited the two periods of AWOL (13 July 2003 through 21 August 2003 and 30 September 2003 through 18 January 2006) as the reasons for the proposed separation action. He was also advised of his rights and he acknowledged receipt of the notification of separation the same day. 9. The applicant consulted with legal counsel on or about 31 January 2006 and was advised of the basis for the contemplated separation action for commission of a serious offense. The applicant: * waived counsel * waived consideration of his case by an administrative separation board and/or personal appearance before a board * elected not to submit a personal statement in his own behalf * acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws in the event he was issued a discharge under other than honorable conditions 10. The separation authority approved the recommendation for the applicant's separation on 10 February 2006, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of his commission of a serious offense. He directed the applicant's reduction to the lowest enlisted grade and that his service be characterized as under other than honorable conditions. 11. The applicant was discharged accordingly on 14 February 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - serious offense. His service was characterized as under other than honorable conditions. His DD Form 214 further confirms he had lost time from 13 July 2003 through 21 August 2003 and 30 September 2003 through 18 January 2006, accounting for a total of 882 days. 12. The applicant's available record is void of any documentation, nor did he provide any documentation that shows he requested leave or assistance with relocating his family. His record is void of documentation or evidence that shows he asked his chain of command for help or assistance or that he asked any other Army agency for assistance with his concerns. 13. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his request on 27 August 2008. 14. The applicant provides a hand-written letter, addressed to the VA, dated 29 December 2015, wherein he states, in effect: * he is currently an inmate at the Arizona Department of Corrections and would like an upgrade of his discharge * after returning from Korea he was stationed at Fort Carson, CO * he asked for a 6 month stabilization after his hardship tour in order to relocate his family * his wife had just given birth and needed help, so he went AWOL * he understands he made a mistake but he was concerned for his family's health and welfare * he would be released from the corrections facility on or about 13 February 2016 REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. It is not an investigative body. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. 2. The applicant contends he was denied a stabilization period (presumed to be interpreted as leave) in order to relocate his family after his period of service in Korea. There is no evidence in his record nor does he provide evidence that shows his chain of command was arbitrary or capricious and he was denied a request for leave, or any other assistance, in order for him to take care of his family. 3. The applicant went AWOL approximately two weeks after he returned from service in Korea. He remained AWOL for a period of 40 days; he went AWOL a second time almost a month later after he was returned to duty, prior to his unit's deployment to Iraq. He remained AWOL during the second period for 842 days, until he was apprehended by civil authorities. Subsequently, his chain of command initiated separation actions. 4. The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 5. The Board operates under the standard of a presumption of regularity in governmental affairs. This standard states, in effect, that in the absence of evidence to the contrary the Board must presume all actions taken by the military are proper. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003261 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003261 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2