BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150011440 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: 9 June 2016 DOCKET NUMBER: AR20150011440 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: 9 June 2016 DOCKET NUMBER: AR20150011440 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 under other than honorable conditions (UOTHC) discharge to a general discharge. 2. The applicant states he was stationed at Fort Bragg, North Carolina, in 1979 when he was asked to help bring a known drug dealer to justice. When he agreed to do so, he was told he and his family would be relocated. As it turned out he was sent to Korea and his family went to Los Angeles, California. Things were real hard for his family there because they were by themselves. He went to the authorities and asked about a compassionate reassignment and he was allowed to go to Los Angeles to get the reassignment process started. The reassignment request was denied and he made a bad choice by not going back to Korea. At the time he could not leave his family by themselves because they were in fear for their lives. 3. The applicant did not provide any supporting documentation. 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 1 May 1975. He reenlisted on 15 March 1978. He held military occupational specialty 94B (Food Service Specialist). 3. His DA Form 2-1 (Personnel Qualification Record - Part II) shows he served overseas in Korea and was awarded the Army Good Conduct Medal (1st Award), the First Class Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar. 4. His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 20 April 1981 for being absent without leave (AWOL) from 10 January to 3 April 1981. 5. The applicant's discharge processing documentation is not available for review. His DD Form 214 shows he was discharged on 15 August 1983 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). His service was characterized as UOTHC. He had completed 3 years and 26 days of active duty service during the period covered by the DD Form 214. He had lost time from 11 January to 5 April 1981 and from 11 May 1981 to 19 June 1983. 6. There is no evidence he requested the Army Discharge Review Board review his discharge within its statutory authority. REFERENCES: 1. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. a. Chapter 10 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 the Soldier must admit his guilt to the charge or a lesser charge. Although an honorable or general discharge is authorized, UOTHC discharge was normally considered appropriate. b. 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-9 states the ABCMR begins 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. The specific facts and circumstances surrounding his discharge are not available for review though it is known he had two extended periods of AWOL with one period exceeding 2 years. His DD Form 214 shows he was administratively discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial with service characterized as UOTHC. 2. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. Therefore, it is presumed in this case the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. In the absence of evidence showing otherwise, it must also be presumed that all requirements of law and regulation were met, that the rights of the applicant were fully protected throughout the separation process, and that his service was properly characterized. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011440 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011440 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2