BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150015467 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: 19 January 2017 DOCKET NUMBER: AR20150015467 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: 19 January 2017 DOCKET NUMBER: AR20150015467 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 upgrade of his under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge. 2. The applicant states, in effect, his UOTHC discharge should be upgraded due to his current medical condition. 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 and entered active duty on 31 July 1979 for a period of 3 years. He was awarded military occupational specialty 13B (Cannon Crewmember). He was advanced to private/pay grade E-2 on 31 January 1980. 3. A "Corrected Copy" of Headquarters, 24th Infantry Division (Mechanized) Artillery, Fort Stewart. GA, Special Court-Martial Order Number 8, dated 1 August 1980, shows the applicant was tried by a special court-martial on 3 July 1980. a. He was found guilty of violation of the Uniform Code of Military Justice, Article 86, for absenting himself from his unit without authority from 18 March 1980 to 15 May 1980. b. He was sentenced to reduction to the grade of E-1 (PV1), forfeiture of $250 pay per month for 3 months, and hard labor without confinement for 30 days. c. On 1 August 1980, the Special Court-Martial Convening Authority approved the sentence and ordered it executed. 4. The applicant received nonjudicial punishment (NJP): a. on 15 August 1980, for being absent from his unit from 0600 hours to 2245 hours on 4 August 1980. His punishment was forfeiture of $100 pay (suspended for 30 days) and 14 days of extra duty (suspended for 30 days); and b. on 23 December 1980, for (on 16 December 1980) being disrespectful in language toward a superior noncommissioned officer; assaulting a Soldier by pushing him; and wrongfully communicating a threat to injure a Soldier. His punishment was forfeiture of $116 pay for 1 month and 14 days of extra duty. 5. On 9 February 1981, the company commander requested the applicant be barred from reenlistment based on misconduct for which he had received NJP. He noted the applicant was a rehabilitative transfer from another battalion. Since then, he had received two counseling statements and NJP on one occasion. The bar to reenlistment was approved on 20 February 1981. 6. A review of the applicant's military personnel records failed to reveal a complete copy of his administrative separation packet. 7. Headquarters, 24th Infantry Division (Mechanized), Fort Stewart, GA, 3rd Endorsement, dated 23 March 1981, subject: Recommendation for Elimination Under the Provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), chapter 14 (Separation for Misconduct) pertaining to the applicant, shows the General Court-Martial Convening Authority approved the separation action UP AR 635-200, paragraph 14-33b(1), for misconduct and frequent incidents of a discreditable nature with military authorities. He directed the applicant be furnished an UOTHC discharge certificate. 8. Headquarters, 24th Infantry Division (Mechanized), Fort Stewart, GA, Orders 62-40, dated 26 March 1981, discharged the applicant from the Regular Army, effective 31 March 1981. 9. The applicant's DD Form 214 shows he entered active duty this period on 31 July 1979 and he was discharged UOTHC on 31 March 1981 UP AR 635-200, paragraph 14-33b(1), for misconduct – frequent incidents of a discreditable nature with military authorities. He had completed 1 year, 6 months, and 5 days of net active service during this period that included 56 days of time lost. 10. A review of the applicant's military personnel records failed to reveal evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. 11. In support of his application the applicant provides copies of 32 pages of medical records spanning the period 28 May 2014 to 16 July 2014. In pertinent part, they show he was seen and/or treated for adenocarcinoma of the right lung, right thoracotomy with pneumonectomy, hypertension, hypercholesterolemia, osteoarthritis, and episodes of hemoptysis (the coughing up of blood), REFERENCES: 1. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct. A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. b. Chapter 3, 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. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides 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. The applicant contends his UOTHC discharge should be upgraded to a general, under honorable conditions discharge due to his current medical condition. 2. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed are presumed to have been appropriate. 3. The evidence of record shows the applicant was convicted by special court-martial, reduced to PV1 (E-1), he received NJP on two occasions, he had 56 days of time lost, and he failed to complete his 3-year enlistment obligation. a. He was discharged for misconduct based on frequent incidents of a discreditable nature with military authorities. b. His record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel to merit a general, under honorable conditions discharge. 4. The serious nature of the applicant's current medical condition is noted. However, the ABCMR does not grant requests for upgrade of discharges based solely on a former Soldier's post-service medical condition(s). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014721 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015467 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2