BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160000322 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: 18 May 2017 DOCKET NUMBER: AR20160000322 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: 18 May 2017 DOCKET NUMBER: AR20160000322 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 correction of his military record by upgrading his under other than honorable conditions discharge to honorable. 2. The applicant states he was mentally and emotionally stressed because of his family’s medical conditions. He told this to his sergeant who said he should go absent without leave (AWOL). He was not in his right mind. He did not know the proper way to go about his problem. He took the sergeant at his word thinking he knew what he was talking about. He went AWOL. After the emergency was over, he realized he had been given bad advice. He joined a veteran’s group to get help. 3. The applicant provides no additional evidence in support of his application. 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. On 28 January 1976, the applicant enlisted in the Regular Army. He was trained as an indirect fire infantryman. 3. On 7 April 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for going AWOL for 2 days. 4. On 22 September 1976, the applicant accepted NJP for willfully disobeying a lawful order to shave. 5. On 10 December 1976, the applicant accepted NJP for failure to go to his appointed place of duty at the time prescribed. 6. On 22 April 1977, the applicant accepted NJP for the wrongful possession of a smoking pipe containing residue of marijuana. 7. On 21 June 1977, the applicant accepted NJP for willfully disobeying a lawful order to empty the trash can. 8. On 10 August 1977, the applicant was convicted by special court-martial of being absent from his unit; being disrespectful towards a commissioned officer; and willfully disobeying a lawful command from a commissioned officer. 9. On 20 December 1977, the applicant was convicted by a summary court-martial of AWOL (five specifications). 10. On 19 January 1978, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty. 11. The discharge packet is missing from the applicant’s military records. However, his DD Form 214 (Report of Separation from Active Duty) shows that he was administratively discharged on 16 January 1979, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1), and assigned separation program designator JKA (pattern of misconduct). His service was characterized as under other than honorable conditions. He completed 1 year, 9 months and 12 days of creditable active duty service. 12. 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: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include a pattern of misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. b. 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. c. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 2. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board 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 that his characterization of service should be upgraded because he was under a lot of mental and emotional stress. 2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record. 3. The record shows he received six NJPs and two court-martials. His record clearly shows a pattern of misconduct. The evidence further shows the separation authority determined his service did not rise to the level required for a general or an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000322 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000322 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2