BOARD DATE:	  8 May 2014

		DOCKET NUMBER:  AR20130017533 


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.

2.  The applicant states:

   a.  he was called back from medical leave, to his unit, under false pretenses;
   
   b.  he was put out of the Army after being on medical hold while on crutches and in a cast;
   
   c.  he knows he had his share of trouble but he was a good Soldier who did not deserve a UOTHC discharge;

3.  The applicant provides a self-authored statement and two character references.

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’s military record shows he enlisted in the Regular Army (RA) on 15 March 1988.  He served in military occupational specialty (MOS) 88M (Motor Transport Operator).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows in Item 18 (Appointments and Reductions) that he was promoted to specialist four (SP4)/E-4 on 1 February 1989, and this was the highest rank he attained while serving on active duty.  His record also shows he was reduced on two separate occasions and that his final reduction was to private (PV1)/E-1 on 10 April 1990.

4.  Item 9 (Awards, Decorations and Campaigns) of the applicant’s DA Form 
2-1 shows that he earned the Army Service Ribbon, Driver and Mechanic Badge, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  

5.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows the applicant was discharged on 18 October 1990.

6.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 
paragraph 14-12c, by reason of "Misconduct-Drug Abuse."  It also shows he completed 2 years, 7 months, and 14 days of creditable active duty service and that he received a UOTHC discharge.

7.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within its 15-year statute of limitations.  

8.  The applicant provides two character reference/witness statements from two retired senior non-commissioned officers who attest to his overall excellent performance of duty, professionalism and leadership qualities, and dedication to the mission while on active duty.  These individuals support his request for an upgrade of his discharge.


9.  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 personnel for misconduct, including the commission of a serious offense.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable discharge (HD) or a general discharge (GD) may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge UOTHC is normally considered appropriate for members separated under these provisions.

   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.

2.  The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing.  However, it does contain a DD Form 214 that identifies the reason and characterization of the applicant’s discharge.  This document carries with it a presumption of government regularity in the discharge process.  Therefore, absent evidence to the contrary, it is concluded his separation processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  In view of the above, the applicant's request should be denied.


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)                                         AR20130017533





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ABCMR Record of Proceedings (cont)                                         AR20130017533



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