IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110020828 


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 discharge under other than honorable conditions (UOTHC) to general or honorable.

2.  He states:

	a.  He does not understand why he has the UOTHC discharge considering he never had a court-martial and served the remaining requirement (2 years) after he served his extra duty (readjustment program) for being absent without leave (AWOL) for 2 days.  This was his first and last offense.  He served a total of 2 years and 11 months of service.  If he did not serve his full term and was discharged early he would understand, but he was discharged years later without any other counseling.  He was told verbally by the discharge staff that his discharge would be honorable.

	b.  After obtaining his DD Form 214 (Certificate of Release or Discharge from Active Duty), he placed it with his file documents and didn't review it.

3.  The applicant provides a copy of a 6 October 2011 letter from the Department of Veterans Affairs Houston Regional Office, simply stating his period of service and character of discharge.

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 applicant's 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 applicant's 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 Regular Army on 16 May 1978.  He completed training and he was awarded military occupational specialty 67N (Utility Helicopter Repairman).  He was then assigned to Fort Bragg, NC.

3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was AWOL from 3 through 5 November 1980 (3 days).

4.  On 24 March 1980, he was administered nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for unlawfully entering the room of two other Soldiers and stealing several of their personal items with a total value of about $600.00.

5.  The applicant's discharge processing documentation is not available.  However, his DD Form 214 shows he was administratively discharged on 9 March 1981 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for conduct triable by court-martial.  He was issued a UOTHC discharge.  He completed 2 years, 9 months, and 21 days of total active service.

6.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

7.  Army Regulation 635-200 provides 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 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 member's 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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 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 specific facts and circumstances surrounding his discharge are not available.  His DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

2.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

3.  Further, the available evidence indicates the applicant’s 3 days of AWOL was not his last offense.  Four months later after this period of AWOL he received nonjudicail punishment for stealing from fellow Soldiers.



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 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)                                         AR20110020828



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ABCMR Record of Proceedings (cont)                                         AR20110020828



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