IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150018431 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150018431 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. IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150018431 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 his under other than honorable conditions (UOTHC) be upgraded to a general discharge (GD). 2. The applicant states he was young and had a difficult time adjusting to life overseas. He did not receive any advice or counseling on how to be a better Soldier. Since his discharge he has received an associate's degree in education and has maintained gainful employment. 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. The applicant enlisted in the Regular Army on 28 October 1986, completed training, was awarded military occupational specialty 91A (Medical Specialist), and was advanced to pay grade E-2. 3. Upon completion of training he was assigned to Headquarters and Headquarters Company, 3rd Battalion, 34th Armor Regiment, in Germany. 4. The available records do not contain the documentation related to the reason for and processing of the applicant's request for discharge in lieu of trial by court-martial under Army Regulation 635-200, chapter 10. 5. The applicant was issued a UOTHC discharge on 21 July 1988. His DD Form 214 shows: * discharge in the rank of private/E-1 * 1 year, 8 months, and 24 days of creditable service * no lost time * award of the Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle Bar 6. There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. An honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. b. A GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory, but not so meritorious as to warrant an honorable discharge. c. A UOTHC discharge is issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier. d. Chapter 10 provides that 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 trial by court-martial. A UOTHC discharge is normally considered appropriate. 2. Army Regulation 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states that the ABCMR 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: 1. Although the discharge packet is not of record, the evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Procedurally, the applicant would have been required to consult with defense counsel and voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial. In doing so, the applicant would have been required to admit guilt to one or more of the stipulated offenses under the UCMJ or a lesser included offense for which a punitive discharge was also authorized. 2. In the absence of evidence to the contrary, 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. The characterization of service he received is commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018431 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018431 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2