IN THE CASE OF: BOARD DATE: 3 September 2013 DOCKET NUMBER: AR20130001902 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 to honorable. 2. The applicant states his discharge was not drug related and was misrepresented by untrue allegations. His character of service as under other than honorable conditions was the direct result of inaccurate false claims by his first-line noncommissioned officer in his malicious attempt to prevent him from attaining an honorable discharge from medically-related issues. He has been unable to appeal his discharge due to the time lapse and difficulty as a civilian to acquire needed supportive evidence. His request for discharge under the provisions of chapter 10 was an attempt to avoid further abuse and ridicule. 3. The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim). 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 12 August 1994 for a period of 3 years and training as an armor crewman. He completed one-station unit training at Fort Knox, Kentucky, and was transferred to Germany on 12 December 1994 for assignment to an armor company in Baumholder. He was advanced to pay grade E-3 on 1 July 1995. 3. He deployed to Southwest Asia from March to May 1995 and to Bosnia from 8 May 1996 to 6 November 1996. 4. The facts and circumstances surrounding his administrative discharge are not present in his available records as they were loaned to the VA in Little Rock, Arkansas, on 19 September 1997. However, his records do contain a duly-authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 13 December 1996 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He completed 2 years, 4 months, and 2 days of active service. 5. There is no evidence in the available records to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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, in 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, an undesirable discharge was considered appropriate at the time. 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. DISCUSSION AND CONCLUSIONS: 1. In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances. 2. After being afforded the opportunity to assert his innocence before a trial by court-martial, the applicant voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record. 3. The applicant's contentions are not sufficiently mitigating to warrant relief under the circumstances, especially given the absence of any evidence to support his contentions. The Board is not an investigative body and the burden of providing proof/evidence of one's claims rests with the applicant. 4. Accordingly, there appears to be no basis for granting the applicant an honorable or 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) AR20130001902 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130001902 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1