BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160004147 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: 14 September 2017 DOCKET NUMBER: AR20160004147 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: 14 September 2017 DOCKET NUMBER: AR20160004147 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 under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge. 2. The applicant states that prior to enlisting in the Army he was a high school athlete and he was never in any trouble. He states during his military service he was unfavorably influenced by other Soldiers, but he takes full responsibility for his choice in associating with those individuals. He also states some measure of consideration should be given to the era of military service during which he served, which was just after the Vietnam War concluded. He further states that he has been a productive member of the Public Works Department in the City of Tulsa, OK, for over 25 years. He adds an upgrade of his discharge will qualify him for veterans' healthcare benefits. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and copies of two forms of identification. 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 26 August 1974 for a period of 3 years. Upon completion of training he was awarded military occupational specialty13B (Cannon Crewman). 3. The applicant received nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ) on six (6) occasions for: * stealing property of a value of about $7.00 on 26 October 1974 from the Army and Air Forces Exchange Service * being absent without leave (AWOL) from 13 August to 15 August 1975 * willfully disobeying a lawful order from his superior noncommissioned officer (NCO) on 17 September 1975 * being disrespectful in language toward his superior NCO on 7 November 1975 and failing to go at the time prescribed to his appointed place of duty on 7 November 1975 * failing to go at the time prescribed to his appointed place of duty on 31 March 1976 * being AWOL from 13 August to 19 August 1976 (he was reduced to private (E-1)) 4. On 26 July 1976, the Commander, Division Artillery, 1st Cavalry Division, approved a rehabilitative transfer for the applicant from Battery C, 1st Battalion, 21st Field Artillery, to Battery C, 1st Battalion, 77th Field Artillery. 5. Headquarters, 1st Battalion, 77th Field Artillery, 1st Cavalry Division, Fort Hood, TX, Summary Court-Martial (SCM) Order Number 21, dated 15 September 1976, shows the applicant was tried by a court-martial. He pled guilty to and was found guilty of: * being AWOL from 7 September to 8 September 1976 * being derelict in the performance of his duty on 7 September 1976 by willfully failing to secure his M17 Protective Mask and M16 Rifle a. On 14 September 1976, he was sentenced to forfeit $240.00 per month for one (1) month and to perform extra duty for a period of 45 days. b. On 15 September 1976, the SCM Convening Authority approved the sentence and ordered it duly executed. 6. A complete copy of the applicant's administrative separation packet is not available in his military personnel records. 7, A DA Form 2496 (Disposition Form), dated 19 November 1976, subject: Discharge for Misconduct, shows the Adjutant General forwarded to the Commanding General (CG), 1st Cavalry Division, the recommendation for discharge of the applicant based on misconduct for frequent incidents of a discreditable nature with civil or military authorities. The staff action referenced the applicant's NJP and his court-martial for AWOL. It also shows the Assistant Staff Judge Advocate concurred with the recommended separation action. a. On 7 December 1976, the applicant requested a personal interview with the CG, 1st Cavalry Division, to discuss his discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13. b. On 16 December 1976, the Chief, Administrative Law, recorded that his office was unable to assist the applicant in seeing the CG, 1st Cavalry Division because the applicant was in an AWOL status effective 9 December 1976. (He was AWOL from 9 December 1976 through 24 January 1977.) 8. Headquarters, III Corps, Fort Hood, TX, Orders 14-16, dated 19 January 1977, discharged the applicant from the Regular Army effective 24 January 1977. 9. A DD Form 214 (Report of Separation from Active Duty) shows the applicant entered active duty this period on 26 August 1974 and he was discharged under the provisions of AR 635-200, paragraph 13-5a(1), and assigned Separation Program Designator (SPD) "JKA" (misconduct – frequent involvement of a discreditable nature with authorities) with a character of service of UOTHC. He had completed 2 years, 3 months, and 2 days of creditable active service and he had 57  days of time lost. 10. The Army Discharge Review Board (ADRB) considered the applicant's request for upgrade of his discharge. On 16 June 1983, the ADRB determined that the reason for his discharge and the character of his service were both proper and equitable. The ADRB denied the relief requested by the applicant. The ADRB also directed issuance of a DD Form 214 and Discharge Certificate based on the applicant's claim that he had never received any documentation regarding his discharge. 11. In support of his request the applicant provides copies of the following documents: a. A DD Form 214 that shows the applicant entered active duty this period on 26 August 1974 and he was discharged under the provisions AR 635-200, paragraph 13-5a(1), SPD "JKA", based on misconduct – frequent incidents of a discreditable nature with civil or military authorities with a character of service of UOTHC. He had completed 2 years, 3 months, and 2 days of creditable active service and he had 57 days of time lost. b. A copy of his Oklahoma Commercial Driver License (issued on 10 June 2015) and a City of Tulsa Public Works employee identification card (issued on 22 February 2008). REFERENCES: 1. AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a. Chapter 13, in effect at that time, provided for separation of enlisted members found to be unfit or unsuitable for further military service. Separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Separation would be initiated only when a member was under military control, except when a member was confined by civil authorities and his military record indicated he should be separated by reason of unsuitability. Separation for unsuitability was authorized if separation procedures were initiated prior to a member departing AWOL. Service of Soldiers separated because of unsuitability was characterized as honorable, general, or undesirable with service characterized as UOTHC. b. 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 635-5-1 (SPD Codes), in effect at the time, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identified the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of AR 635-200, paragraph 13-5a(1), based on misconduct – frequent incidents of a discreditable nature with civil or military authorities. 3. 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 general, under honorable conditions because he was unfavorably influenced by other Soldiers, because some measure of consideration should be given to the post-Vietnam era of military service during which he served, and also in consideration of 25 years of public service to his local community. 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 that during the period of service under review the applicant: * received NJP on six occasions for numerous violations of the UCMJ * was reduced to the lowest enlisted grade (E-1) * was tried and convicted by a special court-martial * had 57 days of time lost * failed to complete his 3-year active duty service obligation 4. The applicant's post-service contributions to his community are noted. Good post-service conduct alone is not normally a basis for upgrading a 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) AR20160004147 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004147 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2