IN THE CASE OF: BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150015973 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: 16 March 2017 DOCKET NUMBER: AR20150015973 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. IN THE CASE OF: BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150015973 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 that his nonjudicial punishment (NJP) dated 11 March 1980 be removed from his record and that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD). 2. The applicant states his NJP is bogus because while he was in basic training there was no one by the name of Crawford in any of his training courses that he could have come in contact with; therefore, he would like it removed from his records. He would also like his discharge upgraded to a GD. He attempted to enroll in healthcare and was turned down. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) dated 11 March 1980. 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 26 February 1980, the applicant enlisted in the Regular Army (RA). After initial training, he was awarded military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist). 3. The applicant received five negative informal counseling statements for sleeping on watch during an exercise, being absent from duty, failing his room inspection, failing to conduct proper hygiene, failing to properly conduct his duties, and his overall negative attitude. 4. The applicant received NJP under the provisions of Article 15, UCMJ, on: * 11 March 1980, for unlawfully assaulting striking Private Crawford by striking him in the face with his fist * 2 April 1981, for being disrespectful in language toward a staff sergeant * 29 May 1981, for two specifications of being absent without leave and one specification of failing to obey an order to get a haircut 5. A DA Form 3822-R (Report of Mental Status Evaluation), dated 14 July 1981, shows the applicant was examined in conjunction with separation for misconduct. He was found to have the mental capacity to understand and participate in board proceedings and to meet retention standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 6. The complete facts and circumstances of his discharge are not available for review. His record does contain a DD Form 214 showing he was discharged on 15 September 1981 with service characterized as UOTHC. His DD Form 214 shows in: * item 12c (Net Active Service This Period) – he completed 1 year, 6 months, and 20 days of creditable active military service * item 25 (Separation Authority) – Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1) * item 28 (Narrative Reason for Separation – "misconduct – frequent incidents of a discreditable nature with civil or military authorities" 9. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge. His application was denied on 18 July 1982. REFERENCES: 1. Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. a. Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14. It states that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter. The separation authority may direct a GD if such is merited by the Soldier's overall record. It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. b. Paragraph 3-7a provides that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b, provides that a GD 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. DISCUSSION: 1. The applicant contends his NJP dated 11 March 1980 is erroneous and should be removed from his record, and he would like to have his discharge upgraded to a GD. 2. The applicant’s separation documents are not available for review. However, the evidence of record confirms he received NJP on three occasions, had five negative counseling statements, and was discharged for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. 3. Although the applicant states that he did not have a person by the name of Crawford in his basic training class, in effect stating that the incident could not have happened, other than his own statement there is no basis for concluding that the document in question is incorrect. Of note is the fact that he still had received NJP on two other occasions and had been counseled for misconduct on several occasions. 4. By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct. Barring evidence to the contrary, the presumption of regularity prevails as it appears that all the requirements of law and regulations were met. The available evidence contains no indication of procedural or other errors that would have jeopardized his rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015973 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015973 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2