BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150012541 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: 1 September 2016 DOCKET NUMBER: AR20150012541 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: 1 September 2016 DOCKET NUMBER: AR20150012541 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 discharge to a general, under honorable conditions discharge. 2. The applicant states that he was convicted by summary court-martial and he completed his sentence of hard labor and retraining. He then received orders to Fort George G. Meade, MD. He states Title 32, Code of Federal Regulations (CFR), section 3.12 (Character of discharge) (38 CFR 3.12), does not apply to his situation because he was not convicted by a general court-martial. 3. The applicant provides copies of: * his summary court-martial order * discharge order * DD Form 214 (Certificate of Release or Discharge from Active Duty) * a National Personnel Records Center letter * a self-authored letter * an extract of 38 CFR 3.12 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 (RA) on 5 July 1978 for a period of 3 years. He was awarded military occupational specialty (MOS) 64C (Motor Transport Operator). He was promoted to private first class (PFC)/pay grade E-3 on 1 January 1979. 3. The applicant received nonjudicial punishment (NJP): a. on 23 March 1979, for being disrespectful in language toward his superior noncommissioned officer (NCO). His punishment was reduction to the grade of private (PV2)/pay grade E-2 (suspended for 60 days), forfeiture of $50 pay, and 7 days of extra duty. b. on 16 August 1979, for carelessly discharging an M-16 rifle and shooting a Soldier in the face using blank ammunition. His punishment was reduction to PV2 (E-2), forfeiture of $150 pay for 2 months, and 45 days of extra duty. 4. Headquarters, 62nd Engineer Battalion (Combat) (Heavy), Fort Hood, TX, Summary Court-Martial Order Number 26, dated 23 October 1979, shows the applicant was tried by a summary court-martial on 23 October 1979. a. He was found guilty of violation of the Uniform Code of Military Justice: * Article 121 (Larceny and Wrongful Appropriation), for stealing the property of a value of $186 from a fellow Soldier * Article 92 (Failure to Obey Order or Regulation), two specifications, for failing to obey a lawful order issued by a superior NCO on 21 August 1979 (i.e., to work on a military truck and to report to the NCO) b. He was sentenced to reduction to the grade of E-1 (PV1), forfeiture of $250, and confinement at hard labor for 21 days. c. On 23 October 1979, the Summary Court-Martial Convening Authority approved the sentence and ordered it executed. 5. On 12 December 1979, he received NJP for failing to obey a lawful order issued by a superior NCO. His punishment was 10 days of restrictions and 10 days of extra duty. 6. A review of the applicant's military personnel records failed to reveal a copy of his administrative separation packet. 7. Headquarters, U.S. Army Retraining Brigade, Fort Riley, KS, Orders 006-2, dated 9 January 1980, discharged the applicant from the RA, effective 10 January 1980. 8. The applicant's DD Form 214 shows he entered active duty this period on 5 July 1978 and he was discharged on 10 January 1980 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), chapter 14 (Separation for Misconduct), paragraph 14-33b(1), for frequent involvement in incidents of a discreditable nature with civil or military authority. He had completed 1 year, 5 months, and 19 days of net active service during this period that included 17 days of time lost. It also shows in: * item 24 (Character of Service): "Under Other Than Honorable Conditions" * item 21 (Signature of Member Being Separated), the applicant's signature 9. A review of the applicant's military personnel records failed to reveal evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. 10. In support of his application the applicant provides the following additional documents (that were not summarized above). a. National Personnel Records Center, St. Louis, MO, letter, dated 23 August 2015, that provided the applicant copies of essential documents from his military personnel records to certify his entitlement to rights and benefits associated with his military service. b. A self-authored letter to the Department Veterans Affairs (VA), dated 3 July 2015, that shows he expressed his disagreement with information the VA had provided to him that pertained his entitlement to VA benefits as governed by 38 CFR 3.12. He provided a summary of his military service, including his conviction by summary court-martial, and contended that the orders given to him by a superior NCO had no merit. He added that he then refused an order from an NCO to get a haircut. The next day he was processed for separation. He was instructed to sign documents without anyone explaining them to him and he was administratively discharged. He added that he did not deserve an under other than honorable conditions discharge. REFERENCES: 1. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. b. Chapter 3, 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. 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. 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. 3. Title 38 CFR, section 3.12, in pertinent part, provides that a discharge under honorable conditions is binding on the Department of Veterans Affairs as to character of discharge. Subparagraph (d) shows a discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions. Subparagraph (d)(4), Willful and persistent misconduct, provides that this includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. DISCUSSION: 1. The applicant contends his under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge because he was not convicted by a general court-martial, he did not deserve an under other than honorable conditions discharge, and the VA is incorrectly applying the provisions of 32 CFR 3.12 with respect to his discharge and VA benefits. 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 is presumed to have been, and still is, appropriate. 3. The regulation governing the applicant's separation shows that, although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. The evidence of record shows the applicant received NJP on three separate occasions; he was convicted by summary court-martial, reduced to PVT (E-1), and confined to hard labor for 21 days; and he failed to complete his 3-year enlistment obligation. b. He was discharged for misconduct based on frequent involvement in incidents of a discreditable nature with military authority. c. His record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant either an honorable or general discharge. 4. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, the granting of veterans' benefits is not within the purview of the ABCMR. Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012541 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012541 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2