IN THE CASE OF:
BOARD DATE: 23 July 2013
DOCKET NUMBER: AR20130000071
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 discharge under other than honorable conditions (UOTHC).
2. The applicant states he was mentally ill at the time of the discharge.
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. The applicant enlisted in the Regular Army on 8 February 1980. He completed training and was awarded military occupational specialty 19E (Armor Crewman).
3. His records show he accepted nonjudicial (NJP) punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:
* on 16 March 1981, for being disrespectful in language toward his superior noncommissioned officer
* on 11 March 1982, for failing to go to his appointed place of duty
4. The applicant's discharge processing documents are not available. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was administratively discharged UOTHC on 20 July 1982 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations Enlisted Personnel). He completed 2 years, 5 months, and 13 days of total active service.
5. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.
6. 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 was considered appropriate at the time.
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.
7. 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. However, his DD Form 214 shows he was administratively discharged UOTHC under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.
2. The applicant did not provide any evidence supporting his assertion that he suffered from mental illness at the time of this discharge.
3. The regulations governing the Board's operation require the presumption that the discharge process was conducted in accordance with applicable laws and regulations unless the applicant can provide evidence to overcome that presumption.
4. The applicant has not shown error, injustice, or inequity for the relief he requests. Therefore, he is not entitled to 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) AR20110020828
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130000071
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2008 | 20080019285
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. At the time of his discharge, he was told he could get his discharge upgraded after a time. There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.
ARMY | BCMR | CY2014 | 20140016722
On 30 August 1982, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13 for unsuitability - apathy. On 14 October 1982, the separation authority approved his separation under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate. Members separating under this provision of the...
ARMY | BCMR | CY2011 | 20110015925
On 23 August 1984, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with the issuance of a UOTHC discharge. The evidence of record shows the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial. ABCMR Record of Proceedings (cont)...
ARMY | BCMR | CY2014 | 20140016706
However, the record does contain a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 10, in lieu of trial by court-martial with a UOTHC characterization of service. A punitive discharge (Dishonorable Discharge or Bad Conduct Discharge) is authorized for an absence without leave (AWOL) offense (time lost) of 30 days or more. Although an HD or general discharge (GD) is authorized, a UOTHC discharge is...
ARMY | BCMR | CY2008 | 20080007904
On 9 July 1982, the separation authority approved the applicant's discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service, and directed the applicant receive an UOTHC discharge and that he be reduced to the lowest enlisted grade. There is no evidence showing that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations. 3 The evidence of record confirms the...
ARMY | BCMR | CY2014 | 20140008105
On 27 October 1982, his commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and that he be given a UOTHC discharge. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. The evidence does not support his request that his discharge should be upgraded.
ARMY | BCMR | CY2013 | 20130012773
The applicant requests his discharge be changed to a medical discharge. The applicant's request for discharge in lieu of trial by court-martial was approved and he was discharged UOTHC on 25 November 1987. The applicant has not provided and the record contains no evidence that he was suffering from any physical or mental condition at the time he went AWOL and was discharged.
ARMY | BCMR | CY2010 | 20100029505
All records were kept from him at the time of his discharge. Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions. He provided no evidence or argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.
ARMY | BCMR | CY2013 | 20130020130
A memorandum, subject: Recommendation for Elimination [Under the Provisions of] Chapter 14, [Army Regulation] 635-200 re: [Applicant], dated 19 September 1983, shows Lieutenant General (LTG) B----, Commander, 21st Support Command, directed the applicant's discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-9, due to conviction by a civil court. The record shows no evidence of disciplinary action taken against the applicant by...
ARMY | BCMR | CY2010 | 20100027637
On 12 March 1982, his unit commander notified him of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, based on misconduct - fraudulent entry due to concealment of a civil conviction at time of enlistment. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. He was discharged from military service under the provisions...