IN THE CASE OF:
BOARD DATE: 10 February 2011
DOCKET NUMBER: AR20100018930
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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.
2. The applicant states he had an excellent military record prior to the incident which led to his discharge. He contends that his misconduct was a one-time incident.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 3 February 1984, was awarded the military occupational specialty of armor crewman, and was promoted to pay grade E-5.
3. The applicant's discharge packet is not available for the Board's review.
4. However, on 10 October 1995, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his UOTHC discharge. In the ADRB's decisional document it was shown that:
a. On 15 May 1992, the applicant was charged with assault upon a female by shooting at her with a dangerous weapon, a loaded firearm, as to endanger human life; and being absent without leave (AWOL) from 5 to 8 May 1992.
b. On 19 May 1992, the applicant consulted with legal counsel and requested discharge under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10, for the good of the service.
c. The applicant was found qualified for separation after a physical and mental evaluation.
d. On 28 July 1992, the applicant was given a UOTHC discharge after his request was approved by the appropriate authority.
5. Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation 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. 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 UOTHC discharge is normally considered appropriate.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's record is absent of evidence to show he had any incident of misconduct or indiscipline other than assault upon a female by shooting at her with a dangerous weapon, a loaded firearm, as to endanger human life; and four days AWOL.
2. However, those are exceptionally serious charges which certainly warranted a UOTHC discharge even when his prior unblemished service was taken into consideration.
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) AR20100018930
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100018930
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120021966
On 5 April 2002, the battalion commander recommended the applicant be separated under the provisions of chapter 14, Army Regulation 635-200, with an under other than honorable conditions discharge. The commander approved the findings and recommendations of the Administrative Separation Board and directed his separation with a general characterization of service. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the...
ARMY | BCMR | CY2003 | 2003088346C070403
The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB. Accordingly, the applicant was discharged on 3 November 1977...
ARMY | BCMR | CY2001 | 2001065883C070421
APPLICANT REQUESTS: That the administrative errors on his Certificate of Release or Discharge from Active Duty, DD Form 214, be corrected and that his separation code (SPD) and authority and reason for discharge be changed to allow him to enlist in a Reserve component. In this affidavit his defense counsel states that the applicant was accused of an unauthorized weapons discharge and that discharge amounted to nothing more than unscheduled weapons training that was completely warranted. In...
ARMY | BCMR | CY2014 | 20140018424
The applicant requests his under other than honorable discharge be upgraded on the basis that, although he was convicted by a civil court, the charge was a misdemeanor, implying it was a minor offense. His records contain a DA Form 4187 stating he was convicted by civil authority for aggravated assault and assault with a deadly weapon. _______ _ X______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of...
ARMY | BCMR | CY2010 | 20100016357
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate. There is insufficient substantive evidence on which to base a discharge upgrade in this case.
ARMY | DRB | CY2009 | AR20090010003
Applicant Name: ????? Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed. The evidence of record indicates that the applicant was adjudged guilty by a court-martial and that the...
ARMY | BCMR | CY2012 | 20120006862
On 14 February 1995, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, chapter 14 for misconduct commission of a serious offense. On 15 February 1995, the separation authority approved the applicant's discharge action under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate. His separation code and narrative reason for...
NAVY | DRB | 2011_Navy | ND1100530
There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits, and this issue does not serve to provide a foundation upon which the Board can grant relief.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall .Since 15 years have...
ARMY | BCMR | CY2008 | 20080010603
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. On 9 September 1974, the applicant requested an upgrade of his discharge. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
ARMY | BCMR | CY2009 | 20090012857
The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. The applicant's military records clearly show that he was discharged with a characterization of service of under other than honorable conditions. 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.