IN THE CASE OF: BOARD DATE: 16 December 2014 DOCKET NUMBER: AR20140008597 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 records to show his under other than honorable conditions (UOTHC) discharge upgraded to honorable. 2. The applicant states he enlisted in the Regular Army on 27 November 1984 and served until 3 March 1988, when he was honorably discharged for the purpose of an immediate reenlistment. On 4 March 1988, he reenlisted. He contends that his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his second period of service ended with a “General discharge under other than honorable conditions.” On 17 March 2006, he received a Department of Veterans Affairs (VA) disability rating of 10 percent. Since that time he has qualified for medical care for his injury. No one ever told him that he needed to upgrade his discharge. He thought all was good until he missed the 15-year statute of limitations on submitting a request for an upgrade. When he logged onto the VA website he discovered that both of his discharges were classified as “other than honorable” and are considered by the VA as “dishonorable.” The VA representative at the homeless shelter where he is staying told him that he had never seen an honorable discharge downgraded to dishonorable. 3. The applicant further states that he is now in danger of losing all of his benefits because someone has fallen asleep at the wheel. He had two heart attacks last year and the VA pays for his heart medication. He will not be able to afford this medicine if he loses his VA benefits. 4. The applicant further explains that his wife did not like the military life style. He was young and in love and agreed to leave the military for her. He gave up a promising future to be with her and their daughter. In the end it did not matter because she left him anyway. If he had to do it over, he would have stayed in the military. Life experience has been a school of hard knocks for him and he has grown wiser since the early days of his life. He will never forget the shame he felt while waiting to be out-processed from the military. He is proud to have served his country and has found the VA to be a brotherhood of individuals who had their issues. He petitions the Board to reinstate his honorable discharge and to upgrade his “general discharge under other than honorable conditions” to what it seems that everyone is being upgraded to – honorable. He leaves that judgment up to the Board which has the experience and wisdom to do what is fair. He is proud of his service and would find great difficulty coping with life if he were to lose his benefits. 5. The applicant provides copies of: * Orders 37-651, Fort Ord, CA, dated 25 February 1988 * DA Form 2166-6 (Enlisted Evaluation Report) ending in August 1988 * DD Form 214 * Statement of Case, VA dated 11 June 2007 * Patient Medication List printed on 24 February 2014 * VA Letter, Summary of Benefits, dated 25 April 2014 (two pages) 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 27 November 1984, the applicant enlisted in the Regular Army. He completed his initial training as an infantryman. 3. On 1 March 1988, the applicant was promoted to sergeant, pay grade E-5. 4. On 25 April 1988, the applicant had completed 3 years, 4 months, and 29 days of creditable active duty service and was honorably discharged from active duty for the purpose of immediately reenlisting. 5. On 26 April 1988, the applicant reenlisted in the Regular Army for a period of 4 years. 6. The discharge packet, to include a record of the charges, is missing from the applicant’s military records. His DD Form 214 shows he was administratively discharged on 12 December 1988, under the provisions of Army Regulation 600-200, chapter 10, for the good of the service. His service was characterized as UOTHC. He completed a total of 4 years and 15 days of creditable active duty service and had 2 days of lost time. Item 18 (Remarks) of his DD Form 214 also shows his immediate reenlistment on 26 April 1988 and his first period of honorable service (27 November 1984 – 25 April 1988). 7. 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. 8. The VA Statement of Case, dated 11 June 2007, as provided by the applicant, states that his period of military service from 27 November 1984 to 3 March 1988 is honorable service for VA purposes. 9. The VA Letter, Summary of Benefits, dated 25 April 2014, as provided by the applicant, states that both periods of his active duty military service is characterized as other than honorable. 10. Army Regulation 635-200 (Enlisted Personnel Separations): a. Chapter 10 of that regulation provides a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial. A discharge UOTHC is normally considered appropriate. 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 (emphasis added), 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. 11. 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 AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected by reinstating his first honorable discharge and to upgrade his “general discharge under other than honorable conditions” to honorable. 2. The applicant’s military records show that he attained the rank of sergeant, pay grade E-5 and completed more than 3 years of active duty service. The quality of this service afforded him the privilege of reenlisting for another period of service, and he was honorably discharged on 25 April 1988 for the purpose of reenlisting on 26 April 1988. Unfortunately, for reasons no longer documented in his military personnel records, he was administratively discharged UOTHC in December 1988. This is not, as the applicant has stated, a general discharge. 3. In the absence of evidence to the contrary, it is presumed that the administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time. 4. The available records do not contain any evidence of the misconduct that led to the applicant's discharge. Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust. 5. There is no evidence showing that the Army has ever made any changes to the characterization of his service. However, it appears that the VA originally considered his first period of active duty service as being honorable for VA purposes; but then in 2014 either changed their policy, or simply made a mistake, when they informed the applicant that both periods of his active duty service were considered to be UOTHC. 6. This Board has no jurisdiction regarding VA policies or actions. It is recommended that the applicant direct his concerns to a VA representative who should be able to either correct his benefit status, or explain why the VA changed his status. The applicant should tell them that the entry in item 18 of his DD Form 214 which shows his first enlistment from 27 November 1984 through 25 April 1988 was honorable; otherwise, he would not have been allowed to reenlist on 26 April 1988. 7. In view of the foregoing, the applicant's request to upgrade his administrative discharge should be denied. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20110020309 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140008597 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1