AR20150009145

IN THE CASE OF:

BOARD DATE: 29 March 2016

DOCKET NUMBER: AR20150009145

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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge.

2. The applicant states he made one mistake and “it” did not show all of his achievements. He was a very good Soldier.

3. He provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in which he states he had an outstanding record of service until he went absent without leave (AWOL) due to personal problems.

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 5 October 1979, the applicant enlisted in the Regular Army. After initial training, he was awarded military occupational specialty (MOS) 11B (Infantryman).

3. A DA Form 4187 (Personnel Action) shows the applicant was absent without leave (AWOL) on 22 February 1983.

4. His DA Form 2-1 (Personnel Qualification Record), item 21 (Time Lost), shows he returned from being AWOL on 15 May 1983 (83 days).

5. The applicant’s records are incomplete and do not contain documentation of the complete facts and circumstances surrounding his discharge.

6. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 16 June 1983 with a characterization of UOTHC. He completed 3 years, 5 months, and 19 days of creditable active duty service. The DD Form 214 shows in:

* item 24 (Character of Service) � “UNDER OTHER THAN HONORABLE CONDITIONS”
* item 25 (Separation Authority) � “CHAPTER 10, AR [ARMY REGULATION] 635-200”
* item 28 (Narrative Reason for Separation) � “FOR THE GOOD OF THE SERVICE”
* item 29 (Dates of Time Lost During This Period) � “830222 � 830515”

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.

a. Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions is normally considered appropriate. An unauthorized absence in excess of 30 consecutive days can lead to a punitive discharge or confinement under the Manual for Courts-Martial.

b. Paragraph 3-7a provides that an honorable discharge (HD) 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. Whenever there is doubt, it is to be resolved in favor of the individual.

c. Paragraph 3-7b provides that a general discharge (GD) 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 HD.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s request for upgrade of his UOTHC discharge was carefully considered. The available evidence does not support his request.

2. Although the applicant’s record is incomplete, in the absence of evidence showing otherwise, it must be presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary and require an admission of guilt.

3. Based on his record, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory.

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) AR20120003058

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont) AR20150009145

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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