BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160001961 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: 10 August 2017 DOCKET NUMBER: AR20160001961 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: 10 August 2017 DOCKET NUMBER: AR20160001961 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, an upgrade of his under honorable conditions (general) discharge. 2. The applicant states his permanent duty station was Fort Irwin, CA, when he was in the Army and he was a member of the OPFOR (Operating Force). His unit was lucky to come back alive when they went on missions. He joined the Army to fight and/or die for his country, not to die playing games that could have been safer. The first week he was there a Soldier was killed by a flamethrower and the second week a Soldier was also killed. He was nearly killed a half dozen times. a. He mentioned these incidents to his commanding officer, but the commander did not listen to him. He claimed the only way he could get his commanding officer and other high-ranking people to listen to him was to go absent without leave (AWOL). He believes the judge saw merit in what he had to say and that is why he received a discharge under honorable conditions (general). b. He was told to wait for 6 months then go to his local Army office and he could get his discharge changed. He realizes he should have taken care of this matter sooner, but he has been working overtime and raising his children. Consequently, he forgot to request an upgrade of his discharge. Now his health is deteriorating. c. He states he was a pretty good Soldier who gave his best. He earned a letter of commendation for being the best Cavalry Scout in his platoon. When he graduated from the OPFOR, he was the only Soldier in the history of that base to get within 10 feet of the enemy's tent without notice. The only bad things he did was going AWOL and receiving nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). He admits he said more than he should have when his bunk was shaken extremely hard to wake him up. Other than these incidents, he was a good Soldier and planned to stay in the Army for a long time. 3. The applicant provides a letter from his physician. 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 March 1984. He completed one station unit training at Fort Knox, KY, prior to being assigned to Fort Irwin, CA, as a Cavalry Scout. 3. On 5 April 1985, a summary court-martial convicted him of two specifications of being AWOL from on or about 7 to 19 March 1985 and from 21 March to 3 April 1985 and for willfully disobeying a lawful command from a commissioned officer. His sentence consisted of a reduction to private/E-1, a forfeiture of $414 pay for 1 month, and confinement for 30 days. 4. The applicant's record does not contain any indication that he addressed or attempted to address dangerous training conditions with his chain of command. His record is void of any indication that he offered an explanation for going AWOL. 5. On 6 May 1985, his company commander notified him of his intent to recommend him for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12b (misconduct - pattern of misconduct). His commander advised him of his rights and the applicant acknowledged receipt of the notification. 6. On 6 May 1985, the commander formally recommended the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b (Misconduct/Pattern of Misconduct). The commander based his recommendation on the applicant's frequent incidents of a discreditable nature with military authorities and conduct prejudicial to good order and discipline, including two incidents of being AWOL and disobeying the lawful order of a commissioned officer. 7. On 10 May 1985, the applicant consulted with counsel, who advised him of the basis for the contemplated separation for misconduct under the provision of Army Regulation 635-200, paragraph 14-12b, the effects of such a discharge, the rights available to him, and the effects of waiving his rights. The applicant waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and did not submit statements in his own behalf. 8. On 13 May 1985, the separation authority waived a rehabilitative transfer and directed the applicant's discharge from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct - pattern of misconduct with a characterization of service of under honorable conditions (general). 9. The applicant's record is void of evidence and he did not provide evidence showing he was told his discharge would be automatically upgraded following the passage of time (6 months). 10. On 16 May 1985, he was discharged accordingly with a general character of service. He completed 1 year, 2 months, and 10 days of creditable active service with lost time from 7 to 18 March 1985 and 21 March to 2 April 1985. 11. He provided a letter, dated 8 December 2015 from his physician who stated the applicant had cirrhosis complicated by gastric varices, ascites, hepatic encephalopathy, and renal insufficiency. The physician also stated the applicant had been a patient for the past 3 years and he could see these complications progressively becoming more medically significant. 12. His service record does not indicate he applied to the Army Discharge Review Board (ADRB) within that board's 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An under other than honorable conditions discharge 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. Paragraph 3-7a states 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. DISCUSSION: 1. The evidence of record shows the applicant received one conviction by a summary court-martial for two specifications of AWOL from 7 to 19 March 1985 and 21 March to 3 April 1985 and for willfully disobeying a lawful command from a commissioned officer. 2. The applicant states the only way he could get his chain of command to listen to him was to go AWOL. However, his record is void of information pertaining to a dangerous training environment, or any evidence that he attempted to address such a training environment with his chain of command. 3. The applicant's administrative discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights. 4. The applicant's record is void of evidence and he did not provide any evidence indicating he was told his discharge would be automatically upgraded following the passage of time (6 months). The U.S. Army does not have nor has it ever had an automatic upgrade policy. The ADRB has the authority to upgrade discharges, as does the ABCMR, upon application. However, each case is decided upon based on its own merits when the Board determines the characterization of service or the reason for discharge or both were improper or inequitable. 5. The Board acknowledges the applicant is currently experiencing health problems. However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances. 6. The applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge. Although a discharge under other than honorable conditions is normally appropriate for the authority and reason for his discharge, it appears his chain of command and the final approval authority considered his overall record of service resulting in the issuance of a general discharge under honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001961 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001961 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2