IN THE CASE OF:	  

		BOARD DATE:	  9 October 2014

		DOCKET NUMBER:  AR20140003126 


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 upgrade of his under other than honorable conditions (UOTHC) discharge. 

2.  He states he was told his UOTHC discharge would change to an honorable discharge after 1 year. 

3.  The applicant did not provide any additional 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.  He enlisted in the Regular Army on 25 February 1977.  After completion of training, he was awarded military occupational specialty 94B (Food Service Specialist).  The highest grade he attained was specialist four/E-4 and his awards include the Army Good Conduct Medal (1st Award).

3.  A Forces Command Form 47 (Review/Removal of Bar to Reenlistment), dated 25 June 1979, shows, at that time, he had no court-martial convictions and had received two nonjudicial punishments (NJP) under the provision of the Uniform Code of Military Justice (UCMJ) for disrespect and being absent without leave (AWOL).  His company commander recommended that the previously-imposed Bar to Reenlistment be lifted.

4.  On 13 July 1979, the request for removal of the Bar to Reenlistment was approved.  

5.  The facts and circumstances surrounding his separation action are not available for the Board's review.  A Veterans Administration (VA) 
Form 00-3101-3, dated 5 June 1986, shows his record of courts-martial, NJPs, and Board of Officers Proceedings (including his discharge packet) are on permanent loan with the VA.

6.  The applicant's record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 25 February 1983 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial with a UOTHC characterization of service.  He had completed 6 years and 1 day of net active service.  Item 18 (Remarks) section of this form shows he reenlisted on 30 January 1980 after completing 2 years, 11 months, and 6 days of honorable active duty service.    

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment under the UCMJ includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A UOTHC discharge is normally considered appropriate.

	a.  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.

	b.  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.  

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was told his discharge would be upgraded to honorable after 1 year.  The Army does not have nor has it ever had a policy to automatically upgrade discharges based on the passage of time.  

2.  The applicant's separation packet was not available for the Board's review. There is a presumption of administrative regularity in the conduct of governmental affairs.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  He has not provided sufficient evidence or a convincing argument to show he was unjustly discharged.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, which is a voluntary discharge for the good of the service in lieu of court-martial and he received a UOTHC characterization of service.  The fact that he was permitted to reenlist on 30 January 1980 lends itself to the presumption that he completed at least 
2 years, 11 months, and 6 days of honorable active service before he was discharged on 25 February 1983.

4.  Therefore, in the absence of evidence to the contrary, it reasonable to presume that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.
5.  In view of the foregoing, he is not entitled to either an honorable or general discharge. 

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)                                         AR20140003126





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ABCMR Record of Proceedings (cont)                                         AR20140003126



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