BOARD DATE: 10 April 2012
DOCKET NUMBER: AR20110017974
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 discharge.
2. He states his character of service on his DD Form 214 (Certificate of Release or Discharge from Active Duty) needs to be changed because it incorrectly shows he has two characters of discharge.
3. He 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 applicant's military records show he enlisted in the Regular Army on 27 October 1988.
3. A memorandum for record, subject: Review of the Summary Court-Martial in the case of United States v. [the Applicant], dated 15 August 1990, shows his sentence was legal. The memorandum does not show what the sentence was or for what charges he was found guilty.
4. His discharge packet is not contained in his records. However, on 8 March 1991, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct. The DD Form 214 he was issued shows his character of service as "under other than honorable conditions (general)." This form shows he completed a total of 2 years, 3 months, and 13 days of total creditable active service with 29 days time lost.
5. His records show that, in March 1994, he applied to the ABCMR for an upgrade of his discharge. However, the results of his application are not available for review.
6. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of the version in effect at the time established policy and prescribed procedures for separating members for misconduct. Specific categories included minor military disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.
a. The characterizations of service given to Soldiers at the time of his separation included under other than honorable conditions and under honorable conditions (general).
b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.
c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. His records show he was convicted by a summary court-martial. He had a total of 29 days of time lost.
2. While his discharge packet is not available, the Board starts its consideration with a presumption of regularity, i.e., that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
3. His character of service was incorrectly typed on his DD Form 214. Unfortunately, there is insufficient evidence to determine with certainty what character of service was directed by the separation authority. In the absence of such evidence, it is not possible to correct the character of service shown on his DD Form 214.
4. In view of the foregoing, there is an insufficient basis for upgrading his discharge to an honorable or a general 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.
ABCMR Record of Proceedings (cont) AR20110017974
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ABCMR Record of Proceedings (cont) AR20110017974
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