BOARD DATE:	       20 February 2014

		DOCKET NUMBER:  AR20130010916


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 under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge (GD).

2.  The applicant states:

	a.  There is a discrepancy in the characterization of discharge, in that it is listed differently on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter issued by the Army Human Resources Command (AHRC).

   b.  He has resulting effects from the Gulf War.
   
3.  The applicant provides:

* AHRC Letter
* DD Form 214
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)


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 (RA) on 14 March 1989.  He was trained in and awarded military occupational specialty 54B (Chemical Operations Specialist).

3.  His Army Military Human Resource Record (AMHRR), formerly known as the official military personnel file (OMPF), is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, with an UOTHC characterization of service.

4.  His DD Form 214 confirms he served in Southwest Asia from 15 September 1990 through 20 April 1991, and he signed this document confirming that the information it contains is correct.  The available record is void of any documents to show he suffered any effects as a result of his Gulf War Service.

5.  On 8 April 2013, the Processing Section Chief, Human Resource Service Center, AHRC prepared an Official Statement of Service referencing the applicant’s military service.  It shows information extracted from the Defense Manpower Data Center shows he received an “Under Honorable Conditions, General” discharge, “In Lieu of Trial By Court-Martial,” for his service performed from 14 March 1989 - 25 March 1992.

6.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge.  However, he did not apply within that board's 15-year statute of limitations.


7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded to a GD based on a discrepancy shown on his DD Form 214 and an AHRC letter, and because of effects he suffered as a result of his Gulf War service.  There is insufficient evidence to support this claim.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have, without coercion, voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.
3.  The discrepancy in his characterization of discharge found on his
DD Form 214 and the AHRC letter is noted.  However, his DD Form 214 was prepared during his separation processing at the time of his discharge from the Army and he authenticated this document at that time confirming the information thereon was correct.  The AHRC letter was prepared more than 21 years after his discharge based on information extracted from the Defense Manpower Data Center, in the absence of his AMHRR.  Accordingly, in the absence of any other official military document to corroborate the information found on the AHRC letter showing the applicant was granted a GD, there is an insufficient evidentiary basis to grant the requested relief in this case.

4.  Finally, there is no evidence of record to corroborate the applicant’s claim he suffered effects from serving in the Gulf war which led to the UOTHC discharge he received.  In fact, the applicant continuously served on active duty an additional 11 months after his Gulf War deployment from 21 April 1991 to 24 March 1992, thereby confirming his ability to effectively serve in the Army.

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)                                         AR20120020677



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ABCMR Record of Proceedings (cont)                                         AR20130010916



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