IN THE CASE OF: BOARD DATE: 28 February 2012 DOCKET NUMBER: AR20110017238 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 discharge under other than honorable conditions (UOTHC) be changed to an honorable or medical discharge. 2. The applicant states that at the time of his discharge he was told his discharge was honorable. Had he known it was not, he would have stayed in the Army. He was under the understanding that he was being discharged for medical reasons. He was never court-martialed. 3. He also requests a personal appearance before the Army Board for Correction of Military Records (ABCMR). 4. He provides no additional evidence. 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 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's military record shows he enlisted in the Regular Army on 9 July 1979 for 3 years. He completed training and was awarded military occupational specialty 13B (Cannon Crewman). He was advanced to pay grade E-2 on 9 January 1980. 3. A DD Form 458 (Charge Sheet) was completed by the Commander, Special Processing Company, Personnel Control Facility, Fort Knox, KY. He was charged with one specification of being absent without leave (AWOL) from 12 May 1980 through 19 November 1980. 4. All the documents containing the facts and circumstances surrounding his discharge are not present in the available records. However, his records contains a statement he submitted with his request for discharge. 5. In the applicant's statement, dated 1 December 1980, he stated he had been advised by his defense counsel that at the time the government had not received the necessary documents and/or records with which to obtain a conviction by a court-martial. He waived all defenses and stated he knowingly, willingly, and voluntarily declared he was AWOL from 12 May through 19 November 1980. He also stated that his counsel explained to him and he understood the type of discharge he could receive and what it would mean to him in the future. 6. His records also contain his DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged for the good of the service in lieu of trial by court-martial in pay grade E-1 on 5 February 1981 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. His service was characterized as UOTHC. He was credited with completing 1 year and 20 days of net active service and time lost from 12 May to 18 November 1980. 7. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10, in effect at the time, stated that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate. 9. Army Regulation 635-200, paragraph 3-7a, states an honorable discharge was separation with honor. 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 inappropriate. 10. Army Regulation 635-200, paragraph 3-7b, states 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. 11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provided for the expeditious discharge of enlisted personnel who, in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, were not qualified for retention on active duty by reason of a physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay. 12. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. The ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR. 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. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant was charged with one specification of being AWOL from 12 May to 18 November 1980. Upon his return and after consulting with counsel, he stated he knowingly, willingly, and voluntarily declared he was AWOL. He waived his rights and also stated he understood he could be furnished a UOTHC Discharge Certificate. He did not mention any medical conditions he was experiencing. 2. He provided no evidence or a convincing argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge. The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge. 3. There is an absence of evidence to support his contentions for entitlement to a medical discharge. There is no evidence he was found to be unfit by reason of a physical disability during his period of active duty. 4. It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. In the absence of evidence to the contrary, government regularity in the discharge process is presumed. 5. His request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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) AR20110017238 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110017238 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1