IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150013178 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 IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150013178 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. IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150013178 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, in effect, correction of his military records by upgrading the character of his service from under other than honorable conditions (UOTHC) to honorable service. 2. The applicant states, in effect, he wants the character of his service upgraded so that he may be eligible to receive Department of Veterans Affairs (VA) medical benefits. 3. The applicant provides copies of: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letter from the VA written to the applicant, dated 27 July 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 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 31 January 1980, the applicant enlisted in the Regular Army. He was trained as a food service specialist. 3. On 17 April 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty at the prescribed time. 4. On 19 March 1982, the applicant accepted NJP for violating a lawful general regulation and Article 92, UCMJ, by carrying a concealed locking blade knife with a blade longer than 3 inches. He also violated Article 128 by assaulting another Soldier with a closed fist to the head and by inflicting grievous bodily harm upon a second Soldier with a knife by cutting the top of his head. 5. The discharge packet is missing from the available records. However, his DD Form 214 shows he was administratively discharged on 8 November 1982, under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service. His service was characterized as UOTHC. He completed 2 years, 9 months, and 8 days of creditable active service. 6. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provides that a member who commits 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. An UOTHC discharge is normally considered appropriate. 2. Army Regulation 15-185 (Army Board for Correction of Military Records 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. 3. Under the UCMJ, the maximum punishment allowed for violation of Article 128 for assault with intent to inflict grievous bodily harm with other than a loaded firearm is 3 years in confinement and a punitive discharge. DISCUSSION: 1. The applicant contends that his military records should be corrected by upgrading his UOTHC characterization of service to honorable, because he wants to obtain VA medical benefits. 2. In the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of his discharge is commensurate with his overall record of service. 3. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct rendered his service unsatisfactory. 4. The applicant's desire to obtain veterans medical benefits is not justification for the upgrade of an individual's 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) AR20150013178 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013178 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2