IN THE CASE OF:  	  

		BOARD DATE:  4 December 2014	  

		DOCKET NUMBER:  AR20140007565 


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 correction of his military records by upgrading his under other than honorable conditions (UOTHC) discharge to honorable.
   
2.  The applicant states his discharge should be upgraded because he did not understand the reasons for his UOTHC discharge and was not given a fair hearing.  He has been homeless ever since his discharge because of his inability to adjust due to his discharge.  It has messed up his life.  He has severe medical problems and needs to obtain medical benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 18 July 1983, the applicant enlisted in the Regular Army.  He completed his initial training as an infantryman with parachutist qualification.

3.  On 5 December 1983, the applicant was assigned to Company C, 4th Battalion, 325th Infantry Regiment, located in Italy.

4.  On 29 March 1985, the applicant was convicted by a summary court-martial for the following offenses:

* Operating a vehicle while drunk
* Leaving the scene of an accident without making his identification known
* Threatening to inflict bodily harm on another person
* Unlawfully striking another person

5.  The discharge packet is missing from the applicant’s military records.  However, his DD Form 214 shows that he was administratively discharged on 
24 September 1985, under the provisions of Army Regulation 600-200 (Personnel Separations Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as UOTHC.  He completed 2 years, 2 months, and 7 days of creditable active duty service.

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

7.  Army Regulation 635-200 provided in:

	a.  Chapter 10 a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge UOTHC is normally considered appropriate.

	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.  

8.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides that the Board 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.  The applicant contends that his military records should be corrected by upgrading his UOTHC discharge upgraded to honorable because he did not understand the reasons for his discharge and was not given a fair hearing.

2.  The available records do not contain any evidence of the misconduct that led to the applicant’s discharge.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that the discharge was unjust. 

3.  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 character of the discharge appears to be commensurate with his overall record.

4.  The applicant's desire to obtain VA medical benefits is not justification to upgrade his discharge.

5.  In view of the foregoing, 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)                                         AR20110020309



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ABCMR Record of Proceedings (cont)                                         AR20140007565



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