BOARD DATE: 26 January 2012
DOCKET NUMBER: AR20110015057
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 (UOTHC) discharge be upgraded to general, under honorable conditions.
2. The applicant states he needs his discharge upgraded.
3. The applicant provides no additional 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 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. On 18 November 1975, the applicant enlisted in the Regular Army. He completed his initial training and he was awarded military occupational specialty (MOS) 11B (Infantryman).
3. On 31 March 1976, the applicant was assigned to the 2nd Battalion, 12th Cavalry Regiment located at Fort Hood, Texas.
4. The applicant accepted the following nonjudicial punishments on:
a. 21 July 1976, for being absent without leave (AWOL) from 1-8 June 1976;
b. 20 September 1977, for being AWOL from 16-19 September 1977;
c. 2 November 1977, for failure to go to his appointed place of duty on
31 October 1977;
d. 25 November 1977, for being AWOL from 19-22 from November 1977, and for failure to obey a lawful order;
e. 26 January 1978, for being AWOL from 20-23 January 1978;
f. 14 February 1978, for failure to go to his appointed place of duty on 2 and
3 February 1978; and
g. 12 April 1978, for being AWOL from 20 March to 11 April 1978.
5. A DD Form 458 (Charge Sheet) was initiated, on 14 May 1978, indicating that charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, commencing 14 April 1978.
6. Records show the applicant was AWOL from 14 April to 5 June 1978.
7. The discharge packet is missing from his military records. However, his
DD Form 214 (Report of Separation from Active Duty) shows that he was administratively discharged on 7 August 1978, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service. His service was characterized as under other than honorable conditions. He completed 2 years and 6 months of creditable active service and he had 75 days of lost time.
8. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.
9. Under the UCMJ, the maximum punishment allowed for violation of Article 86, for being AWOL more than 30 days is a dishonorable discharge and confinement for 1 year.
10. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.
a. 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 trail by court-martial. A UOTHC discharge is normally considered appropriate.
b. 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.
11. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9, provides that the Board 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 requests that his UOTHC discharge be upgraded to general, under honorable conditions because he needs it.
2. In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.
3. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.
4. In view of the foregoing, the applicant's request should be denied.
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) AR20110015057
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ABCMR Record of Proceedings (cont) AR20110015057
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