BOARD DATE: 27 June 2017 DOCKET NUMBER: AR20160000535 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: 27 June 2017 DOCKET NUMBER: AR20160000535 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: 27 June 2017 DOCKET NUMBER: AR20160000535 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 undesirable discharge to general under honorable conditions. 2.  The applicant states he is seeking an upgrade so he can obtain medical benefits from the Department of Veterans Affairs. He suffers from hearing loss and tinnitus. 3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 19 November 1974. 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 on 7 July 1972. He held military occupational specialty 13A (Field Artillery Basic). Following initial training, he was assigned to Fort Carson, CO, and arrived on 12 April 1973. 3.  While at Fort Carson, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on two occasions: * 13 July 1973, for being absent without leave (AWOL) from 8 June to 25 June 1973 * 24 September 1973, for being AWOL from 9 September to 12 September 1973 4.  On 11 February 1974, the applicant was arrested by civil authorities for allegedly breaking into a local business in Colorado Springs, CO. He was held in the city jail pending trial. 5.  On 28 June 1974, a State of Colorado District Court found the applicant guilty consistent with his plea and sentenced him to confinement for a period not to exceed 10 years. His sentence was suspended and he was granted probation on the condition he serve 90 days in the county jail. 6.  On 5 August 1974, his commander at Fort Carson advised him in writing that discharge action had been initiated against him under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion). The applicant acknowledged receipt of the notification and he provided a personal statement, dated 5 August 1974, wherein he stated: * he had been advised of his rights and was making his statement voluntarily * he did not desire to remain in the Army because he saw no advantages * he would likely get into more trouble if he stayed in the Army * he requested a general discharge under honorable conditions if possible 7.  On 12 August 1974, the applicant consulted with legal counsel (a military attorney) and was advised of the basis for the contemplated separation action. He elected the following: * waived consideration of his case by a board of officers * waived his personal appearance before the board * did not submit statements in his own behalf * waived his right to representation by appointed military counsel * did not intend to appeal his civilian court conviction * understood the issuance of an Undesirable Discharge Certificate could make him ineligible for many or all benefits as a veteran under Federal and State laws * understood he could expect substantial prejudice in civilian life 8.  On 11 November 1974, the separation authority approved the applicant's separation and directed his reduction to the lowest enlisted grade. The separation authority also directed the issuance of an Undesirable Discharge Certificate. 9.  The applicant was discharged under other than honorable conditions on 19 November 1974. His DD Form 214 shows he completed 1 year, 8 months, and 29 days of net active creditable service with 228 days of lost time (25 days of AWOL and 204 days in confinement). He was issued an Undesirable Discharge Certificate. The authority is AR 635-206, and the SPD is code JKB (misconduct – conviction by civil court or adjudged a juvenile offender). He was awarded or authorized the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1.  AR 635-206, section VI (Conviction by Civil Court), in effect at the time, stated separation action would to be initiated when a Soldier was convicted by civil authorities of an offense punishable under the UCMJ that would result in a sentence of either death or confinement for more than 1 year. An Undesirable Discharge Certificate would normally be issued to Soldiers discharged under this provision. 2.  AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states 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. 3.  The Manual for Courts-Martial, in effect at the time, shows the maximum punishments for Article 129 (Burglary), UCMJ, as a dishonorable discharge and 10 years in confinement. 4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a.  Paragraph 2-9 contains guidance on the burden of proof. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b.  The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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. DISCUSSION: 1.  The applicant was convicted by a civilian criminal court of offenses that included maximum punishments of confinement for more than 10 years under the UCMJ. Based on this, his unit initiated separation action under against him under AR 635-206. a.  There is no evidence submitted by the applicant or from any other source that would indicate his discharge was not proper and equitable. b.  Rather, the evidence of record appears to show his separation action was accomplished in compliance with applicable regulations, as they were in effect at the time, and there is no indication of procedural errors that would have jeopardized his rights. Further, the characterization of service he received appears to have been commensurate with the basis for his separation. 2.  The ABCMR does not normally grant requests for discharge upgrades solely for the purpose of making an 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 veteran’s benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for healthcare and other benefits should be addressed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000535 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000535 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2