BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160000536 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: 23 May 2017 DOCKET NUMBER: AR20160000536 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: 23 May 2017 DOCKET NUMBER: AR20160000536 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 character of service from under conditions other than honorable to honorable. 2. The applicant states he was helping a fellow man that was being harassed by a Military Police officer and was charged with interfering with a police officer. On the next morning, he was released to his commanding officer that offered him an Article 15. He refused the Article 15 that led to a special court-martial. He states that he did not interfere with the police. He went to his commander and allowed him to handle the situation. He feels he was wrongly accused of a crime that he did not commit. By the rules that was provided to him, he did exactly as he was instructed to do. This has been a burden for him for many years. He has been forced not to receive his proper medical, dental, and Department of Veterans Affairs benefits because of this injustice. 3. The applicant provides a self-authored statement, certificate of birth, letter from the National Personnel Records Center, DD Form 214 (Report of Separation from Active Duty), social security card, and State of North Carolina Identification Card. 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 15 January 1974. 3. Item 21 (Time Lost) of the applicant’s DA Form 2-1 (Personnel Qualification Record - Part II) shows he was absent without leave (AWOL) from 11 to 19 June 1974 (9 days). His service record does not include disciplinary action for this period of AWOL. 4. On 25 October 1974, he was convicted by a summary court-martial of one specification of being derelict in the performance of his duties by willfully failing to perform his duties as a guard and two specifications of failing to go at the time prescribed to his appointed place of duty. He was sentenced to be restricted for 30 days to Fort Hood, reduction to private/E-1, 10 days of hard labor without confinement, and forfeiture of $100.00 pay per month for one month. His sentence was adjudged and approved on 25 October 1974. 5. The applicant’s record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on: * 9 December 1974 for being absent from his appointed place of duty * 8 January 1975 for being absent from his appointed place of duty * 5 November 1975 for being absent from his appointed place of duty 6. On 27 February 1976, he was convicted by a special court-martial of six specifications of failure to go to his appointed place of duty, one specification of willfully disobeying a lawful command, and one specification of breaking restriction. He was sentenced to be confined at hard labor for five months and forfeiture of $150.00 pay per month for six months. The convening authority approved the sentence on 27 April 1976. 7. The complete facts and circumstances surround his discharge are not available for review with this case. However, his DD Form 214 shows he was discharged with under other than honorable conditions characterization of service on 25 May 1976. He was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1). He completed 2 years, 1 month, and 3 days of creditable active duty service and he had 98 days of lost time. His DD 214 also shows in: * item 9c (Authority and Reason), Separation Program Designator (SPD) JLB (Discreditable Incidents – Civilian or Military) * item 9f (Type of Certificate Issued), DD Form 258A (Undesirable Discharge Certificate) * item 10 (Reenlistment Code (RE)), RE-3 8. He provided a self-authored statement which states he enlisted in the U.S. Army on 14 January 1974, completed basic training at Fort Jackson, SC, and was a squad leader with Delta 4-1. Afterwards, he went to Fort Sill, OK, for advanced individual training and completed training in military occupational specialty 13B (Field Artillery). His permanent duty station was Fort Hood, TX. He described the incident in which he noticed one of his Soldiers was being held down on the hood of a police car with his hands cuffed. He and his commander went to the scene and he was arrested and charged with interfering with a police officer. He was released to his commanding officer that night. The next morning, his commanding officer offered him an Article 15, which he refused to accept. Prior to going to trial, the charges were dropped and replaced with being late for Army physical fitness training formation. He was convicted by a court-martial. He was later sent to Fort Riley where he was discharged with an undesirable discharge. 9. His service record does not indicate he applied to the Army Discharge Review Board for a change in his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 13-5a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. b. Paragraph 3-7a states 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 states 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 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies SPD code "JLB" as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of AR 635-200, paragraph 13-5a(1), for unfitness based on frequent incidents of a discreditable nature with civil or military authorities. DISCUSSION: 1. In regard to the applicant's statements that he was helping a fellow man that was being harassed by a police officer and was charged with interfering with a police officer, his service record is void of evidence corroborating his claim. 2. The applicant's service record shows he received three Article 15s, one conviction by a summary court-martial, and one conviction by a special court-martial. In addition, he has a record of lost time from 11 to 19 June 1974 for being AWOL and from 26 February to 24 May 1976 for his period of confinement. Accordingly, his chain of command presumably initiated separation action against him by reason of unfitness. 3. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He provided no information that would indicate the contrary. In the absence of evidence showing otherwise, it must also be presumed that the characterization of his service for his period of service ending on 25 May 1976 accurately reflects the decision the separation authority made after reviewing his record. 4. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for VA benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. The granting of veteran's benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for benefits should be addressed to the VA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000536 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000536 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2