IN THE CASE OF:	  

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130012048


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 under other than honorable conditions (UOTHC) discharge.

2.  The applicant states:

   a.  he made a mistake with excess leave; and
   
   b.  he earned an honorable discharge in 1983 and 1990.

3.  The applicant provides a copy of his18 February 1983 and 6 January 1994 DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 initially enlisted in the Regular Army (RA) on 20 February 1980. His record shows he was trained in and awarded military occupational specialty 13P (Cannon Crewman).

3.  On 18 February 1983, he was honorably released from active duty and transferred to the U.S. Army Reserve.  The DD Form 214 issued him shows he completed 2 years, 11 months, and 29 days of creditable active duty service.

4.  On 8 July 1987, the applicant again enlisted in the RA.  He was honorably discharged on 7 March 1990 for the purpose of immediate reenlistment.  He reenlisted in the RA on 8 March 1990.

5.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to sergeant/E-5 on 1 May 1990, and this was the highest rank he attained while serving on active duty.  Item 21 (Time Lost) shows he accrued 816 days of lost time as a result of being absent without leave (AWOL) from 19 July 1991 – 11 October 1993.

6.  His record shows he was reduced to private/E-1 on 12 November 1993.

7.  The applicant's Army Military Human Resource Record (previously known as the Official Military Personnel File) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), in lieu of trial by court-martial.

8.  The applicant's DD Form 214 also shows he was discharged on 6 January 1994 with a UOTHC characterization of service after completing a total of 
7 years, 3 months, and 5 days of creditable active military service, of which he accrued lost time from 19 July 1991 – 11 October 1993.

9.  On 21 November 1996, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.


10.  Army Regulation 635-200 sets forth 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 discharge (HD) or general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.

   b.  Paragraph 3-7a provides that an HD 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 GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded.  There is insufficient evidence to support this claim.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service and that he received a UOTHC discharge.  This separation document carries with it a presumption of government regularity in the separation process.

3.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  He would have voluntarily requested separation from the Army in lieu of trial by court-martial and procedurally he was required to consult with defense counsel.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

4.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance and considering his lengthy AWOL offense totaling over 800 days, his service did not support a GD or an HD at the time of his discharge nor does it support an upgrade now.

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)                                         AR20130012048





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ABCMR Record of Proceedings (cont)                                         AR20130012048



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