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ARMY | BCMR | CY2013 | 20130000071
Original file (20130000071.txt) Auto-classification: Denied

		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



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         AR20130000071



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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