IN THE CASE OF:
BOARD DATE: 31 October 2013
DOCKET NUMBER: AR20130005327
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 an honorable discharge (HD).
2. The applicant states he was not informed of the procedures to request an upgrade. His discharge was to be upgraded to honorable after 1 year.
3. The applicant provides no supporting 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 22 March 1976, completed training, and was awarded the military occupational specialty 12B (Combat Engineer).
3. He received nonjudicial punishment on 13 January 1977, for failure to properly register his vehicle.
4. The applicant was absent without leave (AWOL) on three occasions;
26 through 28 July 1977, 1 through 29 August 1977, and 8 September 1977 through 27 December 1977. Upon return to military control, he was placed in military confinement from 28 December 1977 through 7 January 1978.
5. The majority of the applicant's discharge processing documentation is not of record.
6. In concert with his discharge under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, the applicant was placed on authorized excess leave for the period 20 January 1978 through 8 February 1978.
7. On 8 February 1978, the applicant was reduced to the lowest enlisted grade and discharged with a UOTHC discharge. His DD Form 214 (Report of Separation from Active Duty) shows 1 year, 4 months, and 27 days of creditable service with 143 days of lost time. His DD Form 214 does not reflect any personal awards.
8. There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service generally has met the standards of acceptable conduct and performance of duty.
b. Paragraph 3-7b states a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
c. 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 under other than honorable conditions is normally considered appropriate.
10. Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. There is not now nor has there ever been any provision under law or regulation allowing for automatic discharge upgrade consideration for separations under Army Regulation 635-200, chapter 10.
2. Further, the mere passage of time is insufficient in and of itself to warrant a change of the applicant's discharge, especially in light of the fact that his military record is devoid of significant service.
3. The applicant has not provided any justification for his periods of AWOL or any documentation that would mitigate the misconduct that resulted in his discharge UOTHC.
4. 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. The type and character of the discharge is commensurate with his overall record. There is insufficient evidence to warrant an upgrade of the applicant's character of discharge to either honorable or general.
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) AR20130005327
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ABCMR Record of Proceedings (cont) AR20130005327
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