BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160002725 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: 15 August 2017 DOCKET NUMBER: AR20160002725 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: 15 August 2017 DOCKET NUMBER: AR20160002725 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 general discharge to an honorable discharge. (Review of the applicant's record shows he was discharged under other than honorable conditions.) 2. The applicant states he served as a sergeant (SGT) in the 82nd Airborne Division from 8 December 1954 to 16 November 1956. He suffered a head concussion during a jump and later became ineligible to go on flights because of this injury. After being discharged from the Army, he never looked at his discharge certificate, and has been unable to find it ever since. He would like to upgrade his character of service and have a new certificate issued. When he tried to obtain a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), he was told his records were destroyed in a fire. He used the information he obtained from the Department of Veterans Affairs (VA) for his rank and discharge, but he asserts he knows the VA's information is inaccurate because his rank was SGT, not private (PVT), when he was separated. In addition, the VA shows he received a general discharge and he learned this type of discharge was insufficient to receive services. 3. The applicant provides a VA printout, a training certificate, a letter from the Army Review Boards Agency, and his DD Form 214 for the period ending 16 November 1956. 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's complete military records are not available for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973. The Army personnel records affected dated between November 1912 and January 1960. It is believed his records were lost or destroyed in that fire. However, the NPRC has provided a reconstructed record, which includes the applicant's DD Form 214. These documents offer a sufficient basis to address his request. 3. The applicant's reconstructed record contains a document that appears to show he enlisted in the Regular Army on 15 February 1952. On 8 December 1954, he was discharged for the purpose of immediate reenlistment. A copy of a DD Form 214 for this period of service was not included in his reconstructed record. 4. His reconstructed record contains a DD Form 214 for the period ending 16 November 1956, which shows his service was characterized as under other than honorable conditions. It also shows he completed 1 year, 6 months, and 10 days of net active service during the period of the report, with 2 years, 9 months, and 22 days of other service (consistent with service from 15 February 1952 to 8 December 1954). a. Item 11c (Reason and authority) shows he was separated under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, AWOL (Absent Without Leave), Desertion, Conviction by Civil Court)), section IV (Conviction by Civil Court) and assigned Separation Program Number (SPN) 284 (Initially Convicted by a Civil Court during Term of Active Military Service). The entry references item 32 (Remarks). b. Other entries state: * Item 3a (Grade, Rate, or Rank) – PVT * Item 3b (Date of Rank) – 23 October 1956 * Item 13a (Character of Service) – under other than honorable conditions * Item 13b (Type of Certificate Issued) – DD Form 258A (Undesirable Discharge Certificate) * Item 19 (Current Active Service Other Than by Induction – Source of Entry) – reenlisted for a term of 6 years on 8 December 1954 * Item 21 (Grade, Rate, or Rank at Time of Entry into Current Active Service) – SGT * Item 25a (Specialty Number and Title) – 716.17 (Personnel Administrative Specialist) * Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – None * Item 32 – 152 days lost; regarding the entry in item 11, initially convicted by a civil court during term of active duty 5. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. AR 635-206, in effect at the time, prescribed procedures for misconduct separations. a. Section IV stated Soldiers who have been initially convicted by a civil court will be subject to discharge. To be considered for discharge under this provision, the Soldier must have been: * convicted and sentenced to death or confinement for more than 6 months or * convicted of an offense for which a sentence to confinement in excess of 6 months is authorized under the Uniform Code of Military Justice (UCMJ), regardless of the actual sentence to confinement b. Upon determination that a Soldier is to be discharged with an undesirable discharge under other than honorable conditions, that Soldier was to be reduced to the lowest enlisted grade. 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. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. While the applicant's complete records cannot be examined, the evidence of record indicates he was convicted by a civilian criminal court. To be discharged under the provisions of AR 635-206, this conviction would have to have resulted in a sentence of more than 6 months confinement, or have been for offense(s) that, under the UCMJ, included maximum punishments of confinement of more than 6 months. It is evident that, based on this conviction, his unit initiated separation action against him. 2. The absence of records means the applicant's complete discharge packet is not available for review. Nonetheless, there is no evidence submitted by the applicant or from any other source that would show he was not properly and equitably discharged in accordance with the regulations in effect at the time. 3. The Board presumes regularity and that actions taken by the Army are administratively correct. All evidence indicates the requirements of law and regulations were presumably met, and the rights of the applicant were fully protected throughout the separation process. Absent any evidence to the contrary, regularity must be presumed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002725 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002725 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2