IN THE CASE OF:	  

		BOARD DATE:	    5 September 2013

		DOCKET NUMBER:  AR20130002083 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD).

2.  The applicant states that it has been more than 30 years since his transgression and not a night goes by that he does not regret his actions.  He was young, impatient, fresh out of college, and in debt with a wife and child.  He wanted to go to Officer Candidate School (OCS) very badly and passed the exam while serving in the Regular Army.  He only needed his superior's approval which was denied for no communicated reason.  He tried to gain a higher audience but was immediately assigned to Turkey (Istanbul).  He was young and he made a big mistake.  He just went home to be with his wife and daughter.  He has broken no laws (not even a misdemeanor) since his discharge.  He apologizes for his actions and asks for leniency.  At his age his employment opportunities are limited; but if his request is granted he would be eligible to pursue a Department of Defense security clearance and governmental employment.

3.  The applicant provides no supporting evidentiary documentation.

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 14 September 1982, completed training, and was awarded military occupational specialty 31C (Single Channel Radio Operator). 

3.  The available record contains no evidence that the applicant had applied for or been considered for any OCS program or was assigned to or served in Turkey.

4.  The applicant was absent without leave (AWOL) from 20 December 1983 through 25 April 1985.  Upon his return to military control court-martial charges were preferred against him for the period of AWOL.

5.  Except for the charge sheet, the discharge packet is not in the available record.  The evidence shows that, on 24 June 1985, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with a discharge UOTHC.  He had completed 1 year, 5 months, and 6 days of creditable service with 1 year, 4 months, and 5 days of lost time and 54 days of excess leave.  

6.  He is not shown to have received any personal awards, decorations, commendations, or citations.

7.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  It provides the following:  

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial, with a discharge UOTHC.  A discharge UOTHC is normally considered appropriate.

   b.  An honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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.  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.

   d.  A UOTHC discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or discharge in lieu of trial by court martial. 

8.  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 that 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.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type and character of the discharge is commensurate with his overall record. 

2.  The applicant had as much lost time as creditable service.  There is no evidence that he served overseas as he implies in his personal statement and he did not receive any commendations or citations while on active duty.

3.  Neither the mere passage of time nor normal good citizenship in and of themselves are sufficient mitigating factors to warrant an upgrade of his discharge especially in light of the fact that his military record is devoid of significant service.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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 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)                                         AR20130002083



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ABCMR Record of Proceedings (cont)                                         AR20130002083



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