BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160004135 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: 12 September 2017 DOCKET NUMBER: AR20160004135 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: 12 September 2017 DOCKET NUMBER: AR20160004135 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 under other than honorable conditions (UOTHC) discharge. 2. The applicant states he enlisted in the Army when he was 16 years of age and he completed his initial enlistment. He reenlisted while he was stationed in Germany and was discharged after about 6 months with an UOTHC discharge. 3. The applicant provides copies of a: * National Archives and Records Administration (NA) Form 13038 (Certification of Military Service) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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's military service records are not available to the Board for review. However, there were sufficient documents in a reconstructed record, along with the documents the applicant provides in support of his application, for the Board to conduct a fair and impartial review of this case. 3. Page 1 of a DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve on 11 January 1977 for a period of 6 years. At the time he was 17 years of age. 4. A review of his available military personnel records shows he: * enlisted in the Regular Army (RA) on 19 August 1977 * was awarded military occupational specialty (MOS) 19D (Cavalry Scout) * served in Germany from 4 December 1977 through 14 February 1980 * was promoted to specialist four (SP4)/pay grade E-4 * was awarded the – * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars 5. Page 1 of a DD Form 4 shows he reenlisted in the RA (at Fort Benning, GA) on 24 June 1980, in the rank SP4 (E-4), for a period of 4 years. At the time he was 20 years of age. 6. A review of the applicant's available military personnel records failed to reveal a copy of his administrative separation packet. 7. A "Corrected Copy" of Headquarters, 197th Infantry Brigade (Separate), Fort Benning, GA, Orders 144-45, dated 27 July 1981, shows the applicant was discharged from the RA effective 7 August 1981. 8. The applicant's DD Form 214 shows he entered active duty this period on 24 June 1980 and he was discharged on 7 August 1981 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1), based on misconduct – frequent incidents of a discreditable nature with civil or military authorities with service characterized as UOTHC. a. He had completed 1 year, 1 month, and 9 days of net active service during this period; 2 years, 10 months, and 15 days of total prior active service; 7 months and 8 days of total prior inactive service; and 2 years, 2 months, and 10 days of foreign service. b. It also shows he: * was reduced to private (PV1)/pay grade E-1 effective 20 January 1981 * had time lost from 10 June through 14 June 1981 9. In support of his request the applicant provides a copy of an NA Form 13038 that shows he held the rank of SP4 (E-4) and he had honorable service in the RA from 19 August 1977 to 14 February 1980. 10. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of 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. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, commission of a serious offense, and other acts or patterns of misconduct. A discharge UOTHC 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. a. Chapter 3, paragraph 3-7a, provides 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. b. Chapter 3, 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 regulation provides that 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 prior period of honorable service is acknowledged. It is also noted that a Certification of Military Service documents his honorable service. 2. The evidence of record shows the applicant enlisted in the U.S. Army when he was 17 years of age. The applicant successfully completed training, was awarded MOS 19D, attained the rank of SP4 (E-4), and served honorably during his initial period of enlistment. The evidence of record undermines the applicant's implication that he was young and immature during the subsequent period of service that is under review. 3. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed are presumed to have been appropriate. 4. During the period of service under review, the evidence of record shows the applicant had 5 days of time lost, he was reduced in rank to PV1 (E-1), and he was discharged with an UOTHC character of service for misconduct based on frequent incidents of a discreditable nature with civil or military authorities. He completed only about 13 months of his 4-year active duty service obligation. 5. The separation authority determined the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004135 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004135 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2