IN THE CASE OF:
BOARD DATE: 5 December 2013
DOCKET NUMBER: AR20130005484
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 his discharge under other than honorable conditions (UOTHC).
2. The applicant states he was told he could get his discharge upgraded after 7 years.
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 12 February 1975 and reenlisted on 22 November 1978 and 15 September 1981. He served in military occupational specialties 19E (Armor Crewman) and 19D (Cavalry Scout) and was promoted to staff sergeant/E-6 on 27 September 1980.
3. The applicant's records contain counseling statements related to missing formations on eight occasions, 1 day of being absent without leave (AWOL), and issuing bad checks (the checks were all written by his wife).
4. A bar to reenlistment was initiated on 19 April 1982 and he was afforded a rehabilitative transfer on 4 May 1982.
5. The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on:
* 22 April 1982, for being absent from his place of duty
* 15 December 1982, for being absent from his place of duty and disobeying a lawful order on two occasions
* 8 March 1983, for being AWOL for 3 days, being absent from his place of duty on two occasions, and writing six bad checks
6. On 15 March 1983, his command initiated separation action against him for misconduct.
7. The applicant acknowledged the separation action and requested a hearing by a board of officers and to be personally present with counsel, but he waived his right to submit a personal statement.
8. An undated summary sheet states the applicant waived board proceedings.
9. The discharge authority accepted the waiver of board proceedings, waived further rehabilitative transfers, and directed the applicant's discharge UOTHC.
10. The applicant was discharged UOTHC for misconduct (pattern of misconduct) on 22 April 1983 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12b. He completed 8 years, 2 months, and 8 days of creditable active service with 4 days of lost time.
11. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statutory limit for review.
12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge UOTHC is normally considered appropriate.
b. Paragraph 3-7a provides that an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.
c. Paragraph 3-7b provides that a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The Army does not have nor has it ever had a policy to automatically upgrade discharges. When an applicant submits a request to change a discharge, each case is decided on its own merits. Change may be warranted if the Board determines the character of service or the reason for discharge was in error and/or unjust.
2. The applicant's administrative separation was accomplished in compliance with the applicable regulation. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.
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) AR20130005484
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ABCMR Record of Proceedings (cont) AR20130005484
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