IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150003509 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 the character of his discharge under other than honorable conditions (UOTHC) to honorable and correction of his narrative reason for separation to show he was medically retired. 2. The applicant states: * he was wrongly arrested and discharged * he was arrested for being absent without leave (AWOL) from the Army National Guard (ARNG) because he was ordered to active duty in Texas * he was placed in confinement at Fort Ord, CA, at the time he was ordered to active duty at Fort Bliss, TX * he lost or misplaced all of his main documents 3. The applicant provides: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * letter to the Department of Veteran Affairs (VA), dated 10 December 2014 * letter from the VA to the Army Board for Correction of Military Records (ABCMR), dated 23 January 2015 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 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 California ARNG on 21 July 1976 for a period of 6 years. 3. Headquarters and Headquarters Company, 40th Infantry Division (Mechanized) Support Command, California ARNG, memorandum, dated 3 April 1979, requested issuance of active duty/active duty for training orders to the applicant for failing to fulfill the satisfactory participation requirements of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures). 4. Headquarters, 6th U.S. Army, Orders 133-313, dated 10 July 1979, ordered him to active duty for a period of 17 months and 21 days effective 30 August 1979 and assigned him to the U.S. Army Reception Station at Fort Bliss, TX, with follow-on assignment to Headquarters and Headquarters Detachment, 21st Replacement Battalion, Germany. 5. He was discharged from the ARNG on 29 August 1979 for failing to fulfill the satisfactory participation requirements. 6. His records contain DA Forms 4187 (Personnel Action) showing: * he was ordered to report to Fort Bliss, TX, on 30 August 1979 * he failed to report as ordered on 30 August 1979 * he was AWOL from Fort Bliss, TX, since 30 August 1979 * he was dropped from the unit rolls on 29 September 1979 * he was apprehended by civilian authorities and returned to military control at Fort Ord, CA, on 1 January 1980 7. His records contain a DA Form 458 (Charge Sheet) showing charges were preferred against him for being AWOL from on or about 30 August 1979 until on or about 20 September 1979. 8. His records do not contain evidence showing he was unable to perform his military duties due to a medical condition. 9. His records are void of the specific facts and circumstances surrounding his final discharge action. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 6 February 1980 in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He completed a total of 6 months and 12 days of creditable active service with 78 days of lost time. His service was characterized as UOTHC. 10. His DD Form 214 shows in: * item 25 (Separation Authority) – Army Regulation 635-200, chapter 10 * item 26 (Separation Code) – JFS * item 28 (Narrative Reason for Separation) – Administrative Discharge – Conduct Triable by a Court-Martial 11. There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. He provided a copy of his letter to the VA, dated 10 December 2014, wherein he stated: * he wanted his discharge changed to medical retirement * he was injured multiple times during training * his injuries included back and neck strain, tinnitus, post-traumatic stress disorder, degenerative arthritis of the spine and right shoulder, migraines, hearing loss, and high blood pressure * his health has deteriorated * he has financial problems 13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several line-of-duty criteria to be eligible to receive retired pay and/or severance pay benefits. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. b. Paragraph 4-3 states an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC. 14. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides 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 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 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. 16. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD code JFS applied to Soldiers being discharged under Army Regulation 635-200, chapter 10, for administrative discharge conduct triable by a court-martial. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions were carefully considered. However, his records are void of the specific facts and circumstances surrounding his discharge. It appears that he was charged for commission of an offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Furthermore, in the absence of evidence showing otherwise, it must be presumed that his final discharge accurately reflects his overall record of service during the period under review. 2. In the absence of evidence to the contrary, it is also presumed that the applicant's narrative reason for separation was in accordance with law and regulations in effect at the time. 3. There is no evidence showing he was unable to perform his military duties due to a medical condition. Nevertheless, he was not eligible for medical retirement since the governing regulation states an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC. 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 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) AR20150003509 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003509 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1