BOARD DATE:	7 October 2010  

		DOCKET NUMBER:  AR20100009459 


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 upgrade of his rank and his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he believes his rank and discharge could be upgraded if his military history were to be taken into account.  At the time of his discharge, they gathered everyone into a room and paid no attention to individual circumstances.  As an E-5 in Germany, he held the position of platoon sergeant and was an outstanding Soldier.  Upon his return to the continental United States (CONUS), marital problems and his immaturity led him to behave in an "unmilitary manner."  He did not want to fight for his own rights, and, to his eternal regret, he became self-destructive.  He further states that his record shows he is a born Soldier and can still serve his country in these hard times, which he would do if not for the discharge he brought on himself.  His résumé shows his career after his discharge is in good standing, and if granted his request, he will enlist again or serve the military as a civilian.

3.  The applicant provides certificates documenting Army training, three Letters of Appreciation, an Army Good Conduct Medal Certificate, three Certificates of Achievement, a commendatory DA Form 4856-R (General Counseling Form), two Honorable Discharge Certificates, a certificate showing he is a Master Mason, a college diploma, a letter commending his post-service performance as a teacher, and his résumé.  



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.  Following a period of service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 7 March 1978.  He was trained in and awarded military occupational specialty (MOS) 05B (Field Radio Operator) and served in various communications positions throughout his Army service.  He reenlisted on 
9 September 1980 and again on 11 July 1983 for a period of 3 years.  

3.  A DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of Assignments) he was dropped from the rolls on 16 December 1985 and returned to military control (RMC) on 4 June 1989.  

4.  The complete facts and circumstances of the applicant's discharge are not contained in the available records.  However, his records contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 October 1989.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, with a character of service UOTHC in the rank/grade of private/E-1.  

5.  The DD Form 214 issued at the time of his discharge shows in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the applicant was awarded the Army Service Ribbon, Good Conduct Medal (2nd award), Overseas Service Ribbon, and Parachutist Badge.  Item 29 (Dates of Time Lost During this Period) shows time lost from 16 November 1985 to 3 June 1989, a total of 3 years, 6 months, and 19 days.  

6.  On 18 March 1992, the Army Discharge Review Board informed the applicant that his request for a change in the character of his discharge had been denied.  

7.  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 UOTHC is normally considered appropriate.  Paragraph 
1-14 of the regulation in effect at the time stated when a Soldier was to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade.

8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his rank and UOTHC discharge is not supported by the evidence.  

2.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations, in which the applicant must admit guilt of the charges.  Although the applicant's separation processing paperwork is not available for review with this case, it is presumed that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  His grade upon discharge was required by the characterization of his service.  

3.  There is no evidence which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.  
4.  The applicant's service prior to the events leading to his discharge and his post-service conduct are noted.  However, the applicant's record of service shows he was absent without leave for over 3 years, an egregious offense for any Soldier, but particularly egregious for a Soldier with more than 7 years of service who had reenlisted twice in the Regular Army.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general discharge or an honorable discharge.

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)                                         AR20100009459





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR