IN THE CASE OF:	  

		BOARD DATE:	  20 August 2014

		DOCKET NUMBER:  AR20130021760 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD).

2.  The applicant states that following the birth of his last child, as he was about to return to duty, his in-laws told him he had to take his wife and three children with him or they would be out on the street in the winter.  He contacted his unit but received no assistance.  After giving the military police (MP) his information, he took his wife and children to his mother's home.  After three or four months the MP's contacted him and told him to return which he did and he was discharged two weeks later.

3.  The applicant provides no supporting documentation.

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 on 10 June 1986, completed training, and was awarded military occupational specialty 63Y (Track Vehicle Mechanic).  

3.  He was advanced to specialist four (E-4) on 1 November 1988 and received the Army Good Conduct Medal on 13 June 1989.

4.  The applicant was granted emergency leave from 16 August 1991 through 26 August 1991.  He was under reassignment orders to Germany; however, he did not report as ordered and was declared absent without leave (AWOL) effective 25 October 1991. 

5.  The applicant voluntarily surrendered to military control at Fort Ord, CA on 3 March 1992 and was discharged on 16 May 1992.

6.  The available record does not include any documentation of the applicant's discharge processing.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) provides the following –

* he completed 5 years, 6 months, and 16 days of creditable service
* he accrued 133 days of time lost 
* a UOTHC characterization of service
* he was discharged on 6 May 1992 under the authority of Army Regulation 635-200, chapter 10, by reason of for the good of the service – in lieu of court-martial

8.  There is no indication the applicant applied for an upgrade of his discharge by the Army Discharge Review Board within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Chapter 10 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 UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.

	c.  Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

	d.  Paragraph 3-7c states that a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  It specifically states a UOTHC is appropriate for discharges under the provisions of chapter 10 of this regulation.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type and character of the discharge is commensurate with his overall record.

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 (UCMJ) 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.  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)                                         AR20130021760



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ABCMR Record of Proceedings (cont)                                         AR20130021760



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