IN THE CASE OF:	  

		BOARD DATE:  11 July 2013

		DOCKET NUMBER:  AR20120022884 


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 discharge his under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states he previously applied to the Board for an administrative upgrade of his discharge from other than honorable to honorable in July 1987 and January 1989 and has never received any response.  Even convicted killers receive notification in a timely manner.

	a.  The only reason he took the discharge was because the two men who could have cleared him both indicated they would say exactly what the commanding officer told them to say.  The truth had nothing to do with it.  He received an order awarding him a Soldier's Medal for actions during a helicopter crash at Pirmasens, Germany.  When he asked to confirm it, he was accused of creating it.  He received a telephone call telling him that if he refused to admit to the charge his family would suffer.  After his wife was beaten up in the basement of their quarters and the refusal of the military police to help, he felt he had no choice but to take the discharge to prevent any repeat performances.

	b.  He contends that his company commander was responsible for fathering a child with the company clerk whose husband had supposedly received a vasectomy.  He is not Sherlock Holmes, but given the conduct of the company clerk and his commander – calling each other by first names, her never receiving any admonishment for screwing up the duty roster or other duties when anyone else would have been court-martialed and never pulling extra duty, and her being promoted without appearing before a promotion board – is very telling.  She was quite unprofessional and casual toward the commander and never admonished.  The facts of her pregnancy and her husband's vasectomy do not exactly take Sherlock Holmes to figure out who the father was.  The company commander was the most selfish officer imaginable.  He had his section clerk alter his personnel file to add a medal for serving 10 years of active duty without any form of documentation or asking anyone else.  He did not trust anyone like him.  He took the abuse of the discharge and accordingly asked for the upgrade only because of threats to his wife and family at the time.  He fully realizes nothing will be done about anything the company commander did.

	c.  He states he now has terminal heart disease and is trying to get his affairs in order.  He asks the Board to examine the report from the Personnel Management Assistance System Team during his tenure as noncommissioned officer in charge of officer records.  His section was the only section commended in the report.  He helped run many local volksmarching events as part of the Pirmasens Pathfinders and served as a cardio-pulmonary resuscitation and first aid instructor in the community for 3 years.

	d.  He has no idea what happened to his earlier applications because he never received anything back.  The Board did not take telephone calls because they were supposedly so busy.  It has been over 20 years and he would appreciate some kind consideration.  He has helped other veterans' get their benefits while working for the Department of Veterans Affairs before suffering his second heart attack.  He harbors no delusions that anyone will do anything about his former company commander, but does ask for forgiveness and help in this matter.  He appreciates the Board's efforts.

3.  The applicant provides no additional evidence.

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.  On 7 September 1982, the applicant enlisted in the Regular Army.

3.  On 22 January 1984, the applicant was promoted to the rank of specialist five/
pay grade E-5.

4.  On or about 22 May 1984, the applicant was assigned for duty in the Federal Republic of Germany.  On 9 October 1984, he was laterally appointed to the rank of sergeant/pay grade E-5.

5.  On 29 March 1985, the applicant accepted nonjudicial punishment (NJP) for stealing car parts valued at about $1,000.00, the property of another Soldier.

6.  On 10 September 1986, the applicant accepted NJP for being disrespectful in language towards a superior noncommissioned officer who was in the performance of her duties.

7.  On 21 May 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge UOTHC, and the procedures and rights available to him.  The charge sheet is not in the available records.

8.  On 21 May 1987, the applicant requested discharge for the good of the service in lieu of trial by court-martial.  He stated he understood the charge against him in violation of Article 134 of the Uniform Code of Military Justice for willfully and unlawfully altering public records and for wrongfully and unlawfully subscribing a false statement under oath.  He indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  In a separate memorandum dated the same day, he requested a general discharge under honorable conditions.

9.  The remainder of the discharge packet is missing from his military records.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty)) shows he was administratively discharged on 23 June 1987 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 600-200, chapter 10.  His service was characterized as UOTHC.  He completed 4 years, 9 months, and 17 days of creditable active duty service.

10.  On 19 December 1990, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

11.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  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.  

12.  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.

	a.  Paragraph 2-2 provides that the Board will decide cases on the evidence of record.  It is not an investigative body.  It may, in its discretion, hold a hearing or request additional evidence or opinions.

	b.  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 contends that his discharge UOTHC should be upgraded to honorable because he had nothing to do with whatever it was that caused him to be so discharged.  The applicant implies that the company commander's less-than-honorable character is evidence of his being unjustly discharged.
2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  The available records do not contain any evidence specific to the misconduct that led to the applicant's discharge.  Furthermore, the applicant has not provided any substantiating evidence in support of his contention that his discharge UOTHC was unjust.  He has not provided any documentary evidence in support of his allegation that his former company commander was less than honorable in the performance of his military duties or that any such action was the proximate cause of his being unjustly discharged.

4.  In view of the above, 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 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)                                         AR20120022884



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022884



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1