IN THE CASE OF:
BOARD DATE: 22 July 2010
DOCKET NUMBER: AR20100000193
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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.
2. The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not indicate that he was injured on active duty. He also believes that his discharge is unjust since it is not honorable or dishonorable. He adds that while he served almost 3 years on active duty, he was immature and made some bad decisions. Since his discharge he has become a pillar of the community. He is a working man, minister, and family man.
3. The applicant elaborates that while in Germany he badly damaged his left knee. He was medically evacuated to the United States for surgery. He then made a bad decision and went absent without leave.
4. The applicant provides his DD Form 214.
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 Board requested the applicant's military records from the repository in St. Louis, MO, without success. However, there are sufficient records to make a fair, impartial and equitable determination in this case.
3. The applicant enlisted in the Regular Army on 29 May 1979 and was awarded the military occupational specialty of food service specialist.
4. On 26 February 1982, he was administratively discharged UOTHC under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10, for conduct triable by court martial. The DD Form 214 he was issued shows the periods 8-12 May 1981, 1-19 August 1981, and 10 September 1981 to 11 October 1981 were all charged as lost time.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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 at any time after the charges have been preferred. A discharge UOTHC is normally considered appropriate.
6. 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 members 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.
7. 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 Soldiers separation specifically allows such characterization.
8. Army Regulation 635-5 (Separation Documents) provides the guidance for completing DD Forms 214. This regulation does not contain any provision to make entries of injuries on the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. While the applicant's discharge packet is not available for review, a presumption of regularity must be presumed that what the Army did was correct.
2. In this case, the applicant's DD Form 214 shows that he had three periods of absence without leave, one of which was for over a month.
3. The applicant is correct. His UOTHC discharge is neither honorable nor dishonorable. The governing regulation provides for such a characterization of service when a Soldier is discharged under Army Regulation 635-200, chapter 10.
4. There are no provisions for entering injuries on a DD Form 214.
5. While it is commendable that the applicant has become a pillar of the community, this is insufficient to warrant upgrading a properly-issued discharge.
6. In view of the foregoing, there is no basis for granting the applicant's 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.
ABCMR Record of Proceedings (cont) AR20100000193
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ABCMR Record of Proceedings (cont) AR20100000193
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