IN THE CASE OF:	   

		BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130017337 


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 than other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states:

   a.  his UOTHC discharge must be upgraded to be eligible to participate in the Veterans Retraining Assistance Program;
   
   b.  his wife told the company commander that he struck her during a fight between the two of them; and
   
   c.  after initially serving his tour with no problems, he was discharged based upon a lie.

3.  The applicant provides a copy of his 13 August 1982 and 31 July 1989 DD Forms 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 21 August 1979. His record shows he was trained in and awarded military occupational specialty 64C (Motor Transport Operator).

3.  On 13 August 1982, he was honorably released from active duty at the completion of required service and he was transferred to the U.S. Army Reserve Control Group (Reinforcement).  The DD Form 214 he was issued at the time shows he completed 2 years, 11 months, and 23 days of creditable active duty service.

4.  On 14 January 1987, the applicant again enlisted in the RA.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist four/E-4 on 21 June 1987, and this was the highest rank he attained while serving on active duty.

5.  His official military personnel file (OMPF) contains a final U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), dated 18 November 1988.  It shows the investigation disclosed the applicant masturbated himself while making his 13-year old step-daughter watch his activity.

6.  On 27 February 1989, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for three specifications of violating Article 134 of the Uniform Code of Military Justice for indecent acts or liberties with a child under the age of 16.

7.  His record shows he was reduced to private (PV1)/E-1 on 11 July 1989.

8.  The applicant's OMPF is void of a complete separation packet containing the specific facts and circumstances surrounding his separation processing.  The applicant's initial request for an administrative discharge under the provisions of Army Regulation 635-200, chapter 10 is unavailable.  However, the battalion commander recommended approval of such action on 5 July 1989.  On 22 July 1989, the Commander, VII Corps, approved the recommendation and directed he receive an under other than honorable conditions discharge.

9.  On 31 July 1989, the applicant was accordingly discharged.  His DD Form 214 for the period ending 31 July 1989 shows he 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 UOTHC characterization of service after completing a total of 5 years, 6 months, and 10 days of creditable active military service.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 

11.  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 (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.  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 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.  

3.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20130017337



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ABCMR Record of Proceedings (cont)                                         AR20130017337


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