IN THE CASE OF: 

		BOARD DATE:	        5 June 2014

		DOCKET NUMBER:  AR20130017810


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.  his discharge should be upgraded because he was a model Soldier who made one terrible mistake;
   
   b.  he has been paying for his mistake for nearly 30 years and he believes he paid the price in full; and
   
   c.  he was not offered a chance to show he could be a better Soldier after making one bad decision.
   
3.  The applicant provides a self authored statement.

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 21 October 1981.  His record shows he was trained in and awarded military occupational specialty 71L (Administrative Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist four (SP4) on 1 June 1983, and this was the highest grade he held on active duty.  He was reduced to the rank of private (PV1/E-1) on 19 July 1985.

4.  The applicant's 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), for the good of the service in lieu of trial by court-martial.

5.  The applicant's DD Form 214 also shows he was discharged on 9 August 1985, with a UOTHC characterization of service after completing a total 3 years, 9 months, and 19 days of creditable active military service.

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

7.  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 GD is authorized, a UOTHC discharge is normally considered appropriate.

   b.  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 concluded 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.

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)                                         AR20130011145



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ABCMR Record of Proceedings (cont)                                       AR20130017810


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