IN THE CASE OF: 

		BOARD DATE: 3 December 2014  

		DOCKET NUMBER:  AR20140007901 


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 reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states:

	a.  he was unfairly punished; the other party received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice.

	b.  This incident was the only negative action in his military career.  His entire period of service was not considered.

	c.  He requested and reviewed his military personnel records jacket (MPRJ) and it appears several items are missing.  All the documents pertaining to this action have been removed.

	d.  All of his records were destroyed in Hurricane Katrina in 2005. 

	e.  He was an outstanding Soldier receiving awards, serving on the Joint Staff, and in the former Yugoslavia.

	f.  A general discharge appears to be warranted as many others get theirs upgraded to general after just six months automatically.  He has paid for this wrong for almost twenty years.  

3.  The applicant provides copies of references to the Department of Veterans Affairs Veterans Benefits Manual citing the eligibility criteria related to the type of discharge when the former service member served for two or more periods of service.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120018240, dated 9 May 2013.

2.  As a new argument, the applicant states his entire record was not considered in his original request for an upgrade of his UOTHC discharge.  This argument will be considered by the Board.  As new evidence he provides reference to the VA Veterans Benefits Manual.  This new evidence is irrelevant and should not be considered by the Board.

3.  After having had prior service, on 2 April 1987 he enlisted in the Regular Army in pay grade of E-2.  He completed training and he was awarded MOS 97B (Counterintelligence Agent).  He was promoted to pay grade E-6 on 1 December 1993.

4.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  Order 108-146, issued by the U.S. Army Intelligence Center, Fort Huachuca, AZ, dated 17 April 1996, that reduced him from staff sergeant (SSG)/E-5 to private (PV1)/E-1 effective 4 April 1996.

	b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 8 May 1996 that shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.  His service was characterized as under conditions other than honorable. 
He was credited with completing 9 years, 11 months, and 11 days of total active service with no time lost.  

5.  On 20 October 2001, the ADRB denied his request for an upgrade of his discharge. 

6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  It states:
	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 or general discharge is authorized, 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.

7.  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.  Paragraph 2-9 states the ABCMR begins 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'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 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 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.  

2.  Therefore, it must be presumed that the applicant’s discharge was characterized by the offense for which he requested discharge rather than face trial by court-martial.
3.  The applicant's new argument has been reviewed; however, it was not sufficiently mitigating to warrant relief in this case.  

4.  The Army regulation governing the Board's operation requires that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  There is no evidence of record and the applicant did not provide any evidence to the contrary.  Therefore, there is no basis for changing his discharge.

5.  The Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120018240, dated 9 May 2013.



      _____________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)                                         AR20120001118



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ABCMR Record of Proceedings (cont)                                       AR20140007901



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