IN THE CASE OF:	  

		BOARD DATE:	  9 December 2008

		DOCKET NUMBER:  AR20080016197 


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, that his discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his UOTHC discharge represents an injustice and an error.  He describes several incidents that occurred in 1989, such as:  subsequently charged with breaking a glass ceiling light on a bunker; conduct unbecoming of an NCO (Noncommissioned Officer); larceny; and misappropriation.  He does not recall exactly which charges he pled guilty to as a condition of his chapter 10 proceedings.  

3.  He states that he should be provided a waiver for the 15-year period for making his application.  He had not applied for a correction of his record previously because he needed to consider it behind him.  He plans to seek employment with the Nevada Department of Corrections as a Custody Officer and was instructed to apply for a correction of his character of service prior to employment.  

4.  He states that in light of the negligible nature of the above incidents, he believes it was an injustice that his discharge was characterized as UOTHC because he was a great Soldier.  He also believes that this character was an error because this action was exceedingly harsh in light of the nature of these incidents.  He concluded that he did his job well and his reviews were excellent.

5.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and four letters of support in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel remains silent. 

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's record shows he enlisted in the Regular Army on 26 July 1983. He was trained as a Military Policeman, in military occupational specialty (MOS) 95B.  He was promoted to sergeant (SGT)/E-5, effective 8 October 1987.  

3.  The applicant's charges are unavailable for review.

4.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy of his DD Form 214 which shows that on 31 January 1990, he was discharged, in pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was furnished an UOTHC discharge.  On the day of his discharge, he had a total of 6 years, 6 months, and 5 days of creditable service.

5.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

6.  The applicant provided copies of four character reference letters.  These character references, although they do not specifically mention an upgrade of his discharge, are believed to have been submitted to support an upgrade of his 
UOTHC discharge to honorable.  They attest to his personal character, integrity, attitude, trustworthiness, professionalism, excellence in the performance of his duties, and future endeavors.

7.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 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 is normally considered appropriate.

8.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

9.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 

3.  The applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service.  Therefore, Government regularity in the discharge process is presumed.

4.  The applicant claims that his UOTHC discharge represents an injustice and an error; however, he has provided no evidence and there is none available to support his claim.

5.  The applicant described several incidents that occurred in 1989 and by his own admission confesses to more than one charge and he admits he does not recall which charges he pled guilty to as a condition of his chapter 10 proceedings.  It is noted that a copy of the charge sheet was unavailable for review.

6.  The evidence of record clearly shows that it has been more than 18 years since he received his UOTHC discharge.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that he attempted or applied for an upgrade of his discharge to the ADRB within the their 15-year statute of limitations.  

7.  The letters of support were considered; however, they are not sufficiently mitigating to warrant an upgrade of his UOTHC discharge.

8.  It is apparent that the applicant is attempting a career change and he was advised to seek an upgrade of his discharge.  The applicant is advised that the Board does not change the character of service nor does it upgrade discharges for the purpose of enabling former service members to seek better employment opportunities.  

9.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

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)                                         AR20080016197



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016197



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1