BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20160002993 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: 5 September 2017 DOCKET NUMBER: AR20160002993 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: 5 September 2017 DOCKET NUMBER: AR20160002993 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 discharge under other than honorable conditions to general under honorable conditions. 2. The applicant states he wants his discharge upgraded so he can receive Department of Veterans Affairs (VA) benefits. His wife was in bed with another man and he lost control of himself. He knows he failed in his duties to the military, but he tried. His life has gone downhill since he left his unit. He can't relate to people outside of the military. 3. The applicant provides no additional evidence. 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 30 October 1979. He completed his training and was awarded military occupational specialty 05C (radio teletype operator). 3. On 18 November 1980, nonjudicial punishment was imposed against him for failing to go at the time prescribed to his appointed place of duty on or about 22 October 1980, 23 October 1980, 28 October 1980, and 29 October 1980. 4. On 12 January 1981, nonjudicial punishment was imposed against him for possessing marijuana on or about 4 December 1980. 5. His records show civil authorities apprehended him in North Carolina on 9 March 1982 for driving under the influence, running a red light, and assault with intent to kill. He was released from civilian confinement on 28 March 1982 pending trial. 6. His records show he was absent without leave from 11 through 13 April 1982. 7. His records indicate that he may have been in civil confinement in North Carolina on 26 April 1982. On 29 April 1982, he was convicted of careless and reckless driving, failure to stop for the blue lights and siren, speeding, driving under the influence, assault on a police officer, and injury to personal property. He was sentenced to 24 months in the North Carolina Department of Corrections. 8. His records are void of the specific facts and circumstances surrounding his discharge action. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions for misconduct (conviction by a civil court) on 11 January 1983 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14. He completed 2 years, 5 months, and 4 days of creditable active service and accrued 283 days of lost time. 9. There is no indication he petitioned 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 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 (military or civilian 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. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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's records are void of the specific facts and circumstances surrounding his discharge action. His DD Form 214 shows he was discharged for misconduct (conviction by a civil court) under the provisions of Army Regulation 635-200, chapter 14. 2. In the absence of evidence to the contrary, it must be presumed that his separation processing was administratively correct and in conformance with applicable regulations in effect at the time. Without the discharge packet to consider, it is presumed that the authority and reason for his discharge and the characterization of service he received were commensurate with his overall record of service. 3. He indicates he wants his discharge upgraded for receipt of veterans' benefits. Any questions he may have regarding eligibility for veterans' benefits should be directed 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) AR20160002993 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002993 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2