IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140006118 


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 an honorable discharge.

2.  The applicant states:

   a.  At the time of his separation, when he spoke with the attorney for the Army, he was advised that if he wanted to leave on the Friday of that week he would have to agree to a chapter 10 discharge.  However, the attorney also asked him if he wanted a chapter 13 (separation for unsatisfactory performance) discharge that would change to a fully honorable discharge in 6 months following separation and that he would have to stay until the following week.

   b.  Chapter 13 was the separation classification he chose and he remained in the detention center until the following week.  His home burned in 2007 and he lost his original DD Form 214 (Certificate of Release or Discharge from Active Duty).  He recently requested a copy of his DD Form 214 and when he received it, it showed he was separated under chapter 10.  He hopes the Board will be able to remedy this error for him so he will be able to join veteran's clubs and support troops and veterans in a time when it seems the politicians are turning their backs on the military...the greatest in the world.

3.  The applicant provides no additional evidence.



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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army, in pay grade E-2, on 11 September 1989.  He was awarded military occupational specialty 11B (infantryman).

3.  On 7 March 1990, he was reported absent without leave (AWOL) and on 6 April 1990, he was dropped from the rolls of his organization.  On 10 May 1990, he was apprehended by civil authorities and returned to military control.

4.  On 16 May 1990, a DD Form 458 (Charge Sheet) was completed by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  The applicant was charged with one specification of being AWOL from 7 March to 10 May 1990.  On the same day court-martial charges were preferred against the applicant.

5.  On 16 May 1990, after consulting with counsel, the applicant admitted he was knowingly, willingly, and voluntarily AWOL.  He requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial for charges being preferred against him.  He acknowledged he could be discharged UOTHC and the result of the issuance of such a discharge.  He also acknowledged he understood that there was no automatic upgrading or review of his discharge by any Government agency or the ABCMR.  He waived his rights and elected not to submit a statement in his own behalf.  

6.  On 22 May 1990, the applicant's company and battalion commanders recommended approval of the applicant's discharge with a UOTHC.  


7.  On 4 June 1990, the separation authority approved the applicant’s request and directed the issuance of a UOTHC discharge and reduction to pay grade 
E-1.

8.  He was discharged accordingly on 26 July 1990.  He was credited with completing 8 months and 13 days of net active service and 64 days of time lost.  His service was characterized as UOTHC.

9.  His record is void of any evidence he was offered or was being processed for separation under the provisions of Army Regulation 635-200, chapter 13, prior to his chapter 10 discharge or at the time.

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

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Chapter 10 - a Soldier who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Army policy stated that although an honorable or general discharge is authorized, a discharge UOTHC was normally considered appropriate.

   b.  Chapter 13 – a Soldier may be separated per this chapter when it was determined that he/she was unqualified for further military service because of unsatisfactory performance.  The service of Soldiers separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records.

   c.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   d.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  He acknowledged the reason for his discharge and that he could be furnished a UOTHC discharge.  He also acknowledged there was no automatic upgrading or review of his discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

2.  There is no evidence of record and he provided none showing he was offered or processed for separation under chapter 13 at the time.  He did not provide any evidence or a convincing argument to show his chapter 10 discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.

3.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the requested relief.

4.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge due to the passage of time.

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)                                         AR20140006118





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ABCMR Record of Proceedings (cont)                                         AR20140006118



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