IN THE CASE OF:
BOARD DATE: 2 October 2008
DOCKET NUMBER: AR20080010224
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 discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge.
2. The applicant states that he acknowledges his poor judgment in the commission of his crime, but believes that his discharge should be upgraded because he had prior honorable service. He adds I requested a review of my case and for consideration for an upgrade to my discharge. I wish the time served and my discharge had best served the military and myself and now an upgrade would be considered for my inter-service, not for a lack of judgment.
3. The applicant provides a letter from counsel.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests that the applicants Bad Conduct Discharge, in effect, his UOTHC discharge be upgraded to a general discharge.
2. Counsel states, in effect, the applicant received an honorable discharge under his first enlistment and under his second enlistment, an incident occurred due to poor judgment on the applicants behalf. After reviewing all of the applicants records, his service under both enlistments, the applicants punishment and time, served, he believe an upgrade of the applicants discharge would favor the service and the applicant.
3. Counsel does not provide any 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 9 August 1977. He was awarded the military occupational specialties of radio operator and personnel administration specialist, served in Korea and Germany, and was promoted to sergeant. He immediately reenlisted on 15 July 1980.
3. The applicants discharge packet was not contained in his records. However, on 27 July 1984, the applicant was discharged UOTHC for the good of the service in lieu of court-martial.
4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment 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.
DISCUSSION AND CONCLUSIONS:
1. The court-martial charges which formed the basis of the applicant requesting discharge are not contained in his records. As such, there is no indication of what the applicants offense or offenses were.
2. It must be presumed the applicants first period of honorable service was taken into consideration when he was issued a UOTHC discharge.
3. In the absence of evidence to the contrary, a presumption of regularity must applied, that what the Army did was correct.
4. In view of the foregoing, there is no basis for granting the applicants request.
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.
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