IN THE CASE OF:	  

		BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140019454 


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 discharge under other than honorable conditions (UOTHC) to general under honorable conditions.

2.  The applicant states:

* while stationed at Fort Benning, GA, he was involved in an altercation after a 45-day field exercise in Germany
* he only had one indiscretion
* he needs his discharge upgraded to be eligible for Department of Veterans Affairs benefits and for employment opportunities

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letters of appreciation and commendation
* certificates of achievement and training
* awards
* service personnel records

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 20 July 1983 for a period of 3 years.  He completed his training and was awarded military occupational specialty 63T (Bradley Fighting Vehicle System Mechanic).  He arrived in Korea on 12 August 1985.  On 19 March 1986, he was honorably discharged for immediate reenlistment.  He reenlisted on 20 March 1986 for a period of 3 years.  He departed Korea on 8 August 1986.  He was promoted to sergeant/E-5 effective 8 October 1986.

3.  In August 1987, nonjudicial punishment was imposed against him for stealing a can of Skoal from the Army/Air Force Exchange Service.  He was reduced in rank to specialist four/E-4.

4.  His records are void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 shows he was issued an UOTHC discharged in lieu of trial by court-martial effective 17 March 1989 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, by reason of administrative discharge – conduct triable by court-martial.  He completed 5 years, 7 months, and 28 days of creditable active service.

5.  There is no available evidence showing he applied to the Army Discharge Review Board for a review and upgrade of his discharge within its 15-year statute of limitations.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	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, an UOTHC discharge is normally considered appropriate.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he wants his general discharge upgraded so he can obtain a better job and qualify for veterans' benefits.  However, a discharge is not changed for the purpose of enhancing employment opportunities or qualifying an applicant for veterans' benefits.  Each application is reviewed to determine whether the preponderance of the evidence shows an error or injustice exists and, if so, what relief is appropriate.

2.  The evidence of record does not support his contention that he only had one indiscretion (altercation).  The available evidence shows he received nonjudicial punishment for stealing.

3.  His records are 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 chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He 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 his rights were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed that his final discharge accurately reflects his overall record of service during the period under review.

4.  In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant a 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 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)                                         AR20140019454



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ABCMR Record of Proceedings (cont)                                         AR20140019454



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