IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100015867 


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 discharge (UOTHC) be upgraded to a general, under honorable conditions discharge (GD). 

2.  The applicant states he made a mistake and would like to have his discharged upgraded.

3.  The applicant provides no supporting 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 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 on 19 July 1990, completed training, and was awarded the military occupational specialty 11M (Fighting Vehicle Infantryman).
3.  He served in Germany from 20 November 1990 through 5 June 1991 with a deployment to Southwest Asia from 16 February 1991 through 16 March 1991.

4.  On 17 August 1992 he went absent without leave (AWOL) and remained absent until 25 September 1992.

5.  The record includes an Admission of AWOL for Administrative Purposes memorandum, wherein the applicant admitted to having been AWOL from 17 August 1992 to 25 September 1992.

6.  Although the discharge documentation is not of record, the evidence of record shows that the applicant was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10, for the good of the service in lieu of trial by court-martial.  

7.  The applicant was discharged on 7 December 1992.  He had 2 years, 3 months, and 11 days of creditable service with 39 days of lost time.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  It provides the following at:

	a.  Chapter 3, outlines the criteria for characterization of service.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7b state that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of an UOTHC for discharges issued under the provisions of chapter 10 of this regulation; and 

	b.  Chapter 10 provides 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.


9.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

10.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he made a mistake and would like to have his discharged upgraded.

2.  In the absence of evidence to the contrary, the applicant's voluntary request for separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service, to avoid trial by court-martial, is presumed to have been administratively correct and in conformance with applicable regulations.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has not provided any evidence or arguments to justify an upgrade.  The mere admission of having made a mistake is not sufficient reason to justify an upgrade or mitigate the misconduct that resulted in his UOTHC.

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)                                         AR20100015867





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ABCMR Record of Proceedings (cont)                                         AR20100015867



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