IN THE CASE OF:	  

		BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120016026 


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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states that, in effect:

   a.  his UOTHC discharge is wrong because his signature does not appear on his DD Form 214 (Report of Separation from Active Duty);
   
   b.  he does not remember going to court or having charges filed against him;
   
   c.  he never received the DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate) or an optional form as indicated on his
DD Form 214; and
   
   d.  he wants all of his discharge documents forwarded to him.

3.  The applicant provides:

* two copies of his DD Form 214
* two self-authored statements
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.)

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 on 14 September 1976.  He served in military occupational specialty 11C (Indirect Fire Infantryman).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was promoted to private first class (PFC/E-3) on 15 December 1977, and this was the highest rank he attained while serving on active duty.  It also shows he was reduced twice and his last reduction was to private (PVT)/E-1 on 21 June 1979.

4.  Item 21 (Time Lost) of his DA Form 2-1 shows he accrued 58 days of lost time.  His record also shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
31 July 1978 and 12 April 1979 for being AWOL.

5.  On 29 May 1979, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL during the following periods:

* 26 February – 1 March 1979
* 21 – 26 March 1979
* 13 April – 25 May 1979

6.  The applicant's Army Military Human Resource Record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), in lieu of trial by court martial.

7.  The applicant's DD Form 214 also confirms he was discharged on 9 July 1979 with a UOTHC discharge after completing 2 years, 7 months, and 28 days of creditable active military service. 

8.  On 20 August 2012, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, his application exceeded the ADRB's 15-year statute of limitations.

9.  Army Regulation 635-200 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 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 discharge (HD) or general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.

   b.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded because he did not sign his DD Form 214 and he does not remember going to court or having charges filed against him.  Additionally, he did not receive his discharge certificate or any other discharge documents.  The absence of the applicant's signature from his DD Form 214, and the absence of memory, 36 years after his discharge, does not call into question the discharge process, or the type of discharge he received.


2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's service.  This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial and that he received a UOTHC discharge.  This separation document carries with it a presumption of government regularity in the separation process.

3.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he would have been required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

4.  Absent 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.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance and considering his repeated AWOL offenses, his service clearly did not support a GD or HD at the time of his discharge nor does it support an upgrade now.

5.  In respect to the applicant's request for a copy of all of his separation documents, he currently maintains a copy of his DD Form 214, which is the only separation document in his AMHRR.

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)                                         AR20120016026



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ABCMR Record of Proceedings (cont)                                         AR20120016026



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