BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160001247 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 BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160001247 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. BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160001247 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, that his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge, by reason of medical disability. 2. The applicant states, in effect, he recently underwent open heart coronary artery grafting surgery for a congenital heart defect. The defect was unknown to him at the time he served in the Army, as it was not discovered during his entry physical. The condition affects him both physically and emotionally, in particular after extreme physical stress. He believes the condition had a negative effect on his judgement and contributed to mistakes that resulted in his discharge. He is not excusing his behavior but the condition was not known at the time of his discharge. In retrospect, he believes his current discharge is inconsistent with his mistakes. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 November 1992. 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 6 November 1990. He entered active duty, completed his initial entry training, and was awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman). 3. The applicant's discharge packet is not available for review; however, his record contains a DD Form 214. This form shows he was discharged on 24 November 1992 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. His DD Form 214 further confirms: * he was discharged in the rank/grade of private/E-1 * he completed 1 year, 10 months, and 18 days of net active service * he was issued a UOTHC discharge * he had lost time from on or about 14 August 1992 through on or about 14 October 1992 4. The applicant's medical records are not available for review and his available personnel records are void of any documentation that shows he suffered from, or was treated for, any medical conditions during his service that may have rendered him medically unfit to perform his duties within the scope of his grade and specialty. 5. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. c. 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 under other than honorable conditions is normally considered appropriate. DISCUSSION: 1. The applicant contends he was unware of a heart condition that may have contributed to the misconduct that resulted in his discharge; however, his medical records are not available for review and he did not provide any evidence to support this contention. 2. The applicant's record is void of the specific facts and circumstances surrounding his discharge. It appears he was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge, after which he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 3. 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 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. Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment. 4. The characterization of service he received was commensurate with the authority for his discharge. Absent evidence to the contrary, regularity must be presumed in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001247 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2