IN THE CASE OF:
BOARD DATE: 15 November 2012
DOCKET NUMBER: AR20120008343
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 under other than honorable conditions (UOTHC) to a general discharge.
2. He states he was mistreated while serving on active duty. He believes he is a contributing member of society and wishes to be recognized as a veteran.
3. He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or 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's military record shows he enlisted in the Regular Army in pay grade E-1 on 22 June 1976 for 3 years. He completed training and he was awarded military occupational specialty 55B (Ammunition Specialist). He was advanced to pay grade E-2 on 22 December 1976.
3. A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 24 September 1977, shows an investigation was initiated and special court-martial charges were pending.
4. On 26 September 1977, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for unlawfully striking a female Soldier on the arm with his open hand and wrongfully communicating a threat to another female Soldier on or about 28 August 1977.
5. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his record contains and he submitted a DD Form 214 which shows he was discharged for the good of the service in lieu of trial by court-martial in pay grade E-1 on 10 November 1977 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10. His service was characterized as UOTHC.
6. There is no indication to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 states a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge for the good of the service at any time after court-martial charges are preferred. A discharge UOTHC is normally considered appropriate.
8. Army Regulation 635-200, paragraph 3-7b, states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's record is void of the facts and circumstances which led to his voluntary discharge. However, his record contains evidence that special court-martial charges were pending against him. His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by a court-martial on 10 November 1977.
2. His contentions have been noted; however, the issuance of a discharge under the provisions of Army Regulation 635-200, chapter 10, required him to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. He provided no information that would indicate the contrary.
3. He has provided insufficient evidence or argument to show his discharge should be upgraded and his military record contains no evidence which would warrant an upgrade of his 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 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) AR20120008343
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ABCMR Record of Proceedings (cont) AR20120008343
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