BOARD DATE: 19 July 2011
DOCKET NUMBER: AR20100030322
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 an upgrade of his under other than honorable conditions (UOTHC) discharge.
2. The applicant states he was told his discharge would automatically be upgraded 6 months after he was separated. He now needs help with a service connected medical condition.
3. The applicant provides no documents to substantiate his application.
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 applicant enlisted in the U.S. Army Reserve on 18 January 1979.
3. His DA Form 2-1 (Personnel Qualification Record- Part II) shows he was ordered to active duty for training for 13 weeks. He commenced basic training on 23 February 1979. There is no evidence that he completed this training.
4. His DD Form 214 (Report of Separation from Active Duty) shows that, on 30 March 1979, the applicant was separated under the provisions of chapter 10, Army Regulation 635-200, with a UOTHC discharge. The available record contains no documentation relating to the discharge process.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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.
b. 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.
c. 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.
6. Army Regulation 15-185 (ABCMR), paragraph 29 states, "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 details surrounding the applicant's discharge are not available and he has provided none. In the absence of evidence to the contrary, it must be presumed that the applicant's discharge processing was done correctly and that the characterization of service is equitable.
2. There was not, nor has there ever been, any statutory, regulatory, or policy provision for automatically upgrading a discharge. Each case is decided on its own merits when an applicant requests a change in the discharge. Changes may be warranted if it is determined that the characterization of service or the reason for discharge or both are improper or inequitable.
3. In view of the foregoing, there is no basis for granting the applicant's requested relief.
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) AR20100030322
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ABCMR Record of Proceedings (cont) AR20100030322
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