BOARD DATE: 31 August 2017 DOCKET NUMBER: AR20160001790 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: 31 August 2017 DOCKET NUMBER: AR20160001790 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: 31 August 2017 DOCKET NUMBER: AR20160001790 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 characterization of service in order to allow him to receive medical treatment and compensation for conditions received during his enlistment. 2. The applicant states the record does not support the actions and stress to which he was exposed at 19 years of age. He claims he was confused and received no guidance, support, or training to prepare him for the actions. In addition, he states his wife died in an automobile accident. 3. The applicant provides a DD Form 214 (Report of Separation from Active Duty) and three letters. 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 27 June 1969, at 18 years of age. 3. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions: * 10 July 1970, for absenting himself from his unit from on or about 6 July 1970 through on or about 7 July 1970 * 21 July 1970, for wrongfully disobeying a lawful command issued by his superior commissioned officer on 16 July 1970 4. On 6 July 1970, a special court-martial convicted him of being absent without leave (AWOL) from on or about 18 December 1969 to on or about 26 May 1970 and from on or about 15 June to on or about 5 July 1970. The sentence, which was adjudged on 23 July 1970 and approved on 30 July 1970, included confinement at hard labor for four months, forfeiture of $40 pay per month for four months, and reduction to the rank/grade of private (PVT)/E-1. 5. On 11 March 1971, a special court-martial convicted him of being AWOL from on or about 7 December 1970 to on or about 1 February 1971. The sentence, which was adjudged on 31 March 1971 and approved on 7 May 1971, included a bad conduct discharge (suspended for three months, at which time, unless the suspension was sooner vacated, the suspension portion will be remitted without further action), confinement at hard labor for three months, and forfeiture of $50 per month for a period of three months. 6. The applicant received NJP under the provisions of Article 15 of the UCMJ on 2 August 1972, for willfully disobeying a lawful order from his superior noncommissioned officer on 11 July 1972. 7. On 6 September 1972, a special court-martial convicted him of stealing a Timex watch; stealing currency; and unlawfully entering a room on McNair Kaserne with the intent to commit larceny. The sentence, which was adjudged on 10 November 1972 and approved on 13 December 1972, included the forfeiture of $150.00 per month for a period of five months, confinement at hard labor for five months, and reduction in rank/grade to PVT/E-1. 8. On 7 October 1974, the applicant underwent a separation physical in which he claimed he was in good health and listed no history of medical problems, which he may have incurred during his service. 9. His discharge packet is not available for review; however, his record contains a DD Form 214 that shows he was discharged on 29 October 1974 after completing 2 years, 5 months and 23 days of net active military service this period with 187 days lost time. He was nearly 24 years old at the time of his discharge. This form shows he was administratively discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for conduct triable by court-martial. It also shows his characterization of service as under other than honorable conditions. 10. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations. 11. The applicant provides three letters of support, which attest to his positive moral character and dependability. His pastor states that over the years he has known the applicant, the applicant had gone through challenges to include losing his wife and son in an automobile accident. The letters note that he regularly attends church with his mother and is attentive to his Christian duties. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation 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 must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. 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 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through 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. DISCUSSION: 1. The applicant contends that the Board should upgrade his discharge because he was young at the time of his service. His records show that he was nearly 24 years of age at the time of his discharge. There is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed military service. 2. The complete facts and circumstances surrounding the applicant's discharge are not available for review; however, it is reasonable to presume court-martial charges were preferred against him and that the applicant subsequently elected discharge in lieu of trial by court-martial. 3. Discharge under the provisions of Army Regulation 635-200, chapter 10, is voluntary. The applicant could only receive such a discharge by voluntarily requesting discharge in lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial. At the time, the Army considered an undesirable discharge appropriate for Soldiers separated for the good of the service. 4. In the absence of evidence to the contrary, the presumption of administrative regularity must be applied. As such, it is presumed that his discharge process was accomplished in accordance with applicable regulations. It is also presumed that all requirements of law and regulation were met, that his rights were fully protected throughout the separation process, and that he received the appropriate characterization of service. 5. The evidence of record indicates the applicant had a history of AWOL, NJP, and he was convicted by three courts-martial. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, his service did not meet the criteria for an honorable or a general characterization of service. 6. The ABCMR does not grant requests for upgrade of discharges solely for making an applicant eligible for veteran's benefits. Every case is unique. The Board makes decisions based upon the merits of the evidence when requesting a change of their character of service. The granting of veteran's benefits is not within the purview of the ABCMR. The applicant should address any questions regarding eligibility for benefits to the VA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001790 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001790 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2