IN THE CASE OF:
BOARD DATE: 22 November 2011
DOCKET NUMBER: AR20110011347
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 under other than honorable conditions (UOTHC) discharge.
2. He states:
* his unit was involved in the killing of innocent kids and babies during the Gulf War
* he had nightmares for 15 years and they started again during the summer of 2010
3. He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), Department of Veterans Affairs (VA) Form 21-526 (Veteran's Application for Compensation and/or Pension), and VA Form 21-4142 (Authorization and Consent to Release Information to the VA).
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. After completion of prior active and inactive service, the applicant enlisted in the Regular Army on 26 June 1987.
3. His service record contains a DA Form 4187 (Personnel Action), dated 4 April 1990, which shows he received an Article 15 on 3 April 1990 and was reduced from E-4 to E-3.
4. He served in Southwest Asia from 28 August 1990 to 24 March 1991.
5. Item 21 (Time Lost (Section 972, Title 10, U.S. Code)) of his DA Form 2-1 (Personnel Qualification Record Part II) shows he was absent without leave (AWOL) from 17 May to 16 June 1991.
6. His service record contains DA Forms 4187-E which show he was AWOL during the periods:
* 17 to 23 May 1991
* 24 May to 15 June 1991
* 24 June to 30 July 1991
7. His discharge packet is not available for review. His DD Form 214 shows he was discharged on 3 September 1991 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial with issuance of a UOTHC discharge. He completed 4 years and 5 days of active service. His DD Form 214 also shows periods of time lost from 17 through 22 May 1991; 24 May through 13 June 1991; and 24 June through 29 July 1991 (62 days).
8. His service record doesnt indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.
9. 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 discharge UOTHC 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 (emphasis added), 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions regarding his experiences during the Gulf War and since that time are acknowledged. While the Board is empathetic, these issues are not sufficiently mitigating to warrant an upgrade of his discharge.
2. Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offense(s) charges and the requests are voluntary requests for discharge in lieu of trial by court-martial. As such, government regularity insofar as the discharge process must be presumed. It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, it appears the applicants discharge reflects his overall record of military service. Therefore, the applicant is not entitled to either a general 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.
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