BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160006376 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. 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: 10 April 2018 DOCKET NUMBER: AR20160006376 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 10 April 2018 DOCKET NUMBER: AR20160006376 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) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. 2. The applicant states he was notified that after 6 months his discharge would change to honorable; however, that never happened. 3. The applicant provides no additional evidence in support of his request. 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 7 April 1981. He completed his initial entry training and was awarded military occupational specialty 94B (Food Service Specialist). 3. The applicant received non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 16 October 1981 for: * being absent without leave (AWOL) from on or about 21 August 1981 to on or about 14 September 1981 * failing to go at the time prescribed to his appointed place of duty on or about 15 October 1981 4. The applicant's commander notified the applicant that he was considering initiating separation actions against the applicant in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct. 5. The applicant acknowledged receipt of the notification of his contemplated separation action on 29 November 1982. He acknowledged he was being considered for separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct. He consulted with legal counsel and waived his right to submit statements in his own behalf. He further acknowledged: * he could expect to encounter substantial prejudice in civilian life if issued a less than honorable discharge * if his discharge was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or ABCMR for upgrading * an act of consideration by the ADRB or the ABCMR did not imply that his discharge would be upgraded 6. The applicant's commander recommended his separation on 25 January 1983, under the provisions of Army Regulation 635-200, chapter 14, for misconduct. The reason stated for the recommended action was the applicant's conviction by civil court. The applicant had been convicted of aggravated assault and armed robbery and sentenced to 21 years of confinement. 7. The approval authority approved the recommended discharge on 12 April 1983 and directed the applicant receive an UOTHC characterization of service. 8. The applicant was discharged on 18 April 1983. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, for civil conviction. His service was characterized as UOTHC. 9. There is no indication he petitioned the ADRB for a review of his discharge processing within that board's 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 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities; desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. DISCUSSION: 1. The applicant requests that his under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. He contends he was told that his discharge would be upgraded to honorable after 6 months. 2. The evidence of record shows the applicant received an Article 15 for AWOL and was convicted by a civilian court of aggravated assault and armed robbery. 3. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights. The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action. The characterization of service he received was commensurate with the reason for his discharge. 4. The U.S. Army does not have, nor has it ever had, a policy that allows for the automatic upgrade of discharges based on the passage of time. Each case is decided on its own merits when an applicant requests a change. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006376 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006376 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2