IN THE CASE OF: BOARD DATE: 23 January 2018 DOCKET NUMBER: AR20160005193 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. 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. IN THE CASE OF: BOARD DATE: 23 January 2018 DOCKET NUMBER: AR20160005193 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING ::x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 January 2018 DOCKET NUMBER: AR20160005193 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 upgrade of his general discharge under honorable conditions to honorable. 2. The applicant states he was discharged due to medical issues and never received any administrative actions. He was a good Soldier who served honorably. 3. The applicant provides no additional documentary 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 3 January 1980. He held military occupational specialty 64C (Motor Transport Operator). Following completion of initial training, he was assigned to Germany. 3. While in Germany, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty (failure to repair (FTR)). 4. He was reassigned to Fort Benning, GA, and arrived on 20 January 1985. 5. On 15 August 1985, the applicant was notified a unit urinalysis, conducted on 10 July 1985, revealed he had tested positive for marijuana. 6. On 19 August 1985, his Fort Benning commander initiated a bar to reenlistment action against him based on his positive urinalysis test results. In an endorsement, dated 28 August 1985, the acting battalion commander noted the applicant displayed an apathetic attitude toward the Drug and Alcohol Program. 7. On 29 August 1985, a military police (MP) blotter recorded that the applicant was involved in a traffic accident; he was charged with failing to yield the right of way at a stop intersection. 8. On 16 September 1985, the Commanding General, U.S. Army Infantry Center, approved the bar to reenlistment. 9. On 10 October 1985, the applicant's commander indicated he had taken administrative action (i.e., counseling and a requirement to attend a defensive driving course) against the applicant for his aforementioned traffic violation. 10. On 19 November 1985, the applicant accepted NJP for FTR, which took place on 8 November 1985. 11. On 21 March 1986, the applicant again accepted NJP for FTR, occurring on 17 March 1986. 12. A DA Form 3975 (MP Desk Blotter), dated 11 June 1986, indicated the MPs were called to the applicant's residence due to a domestic disturbance complaint. The applicant's wife affirmed she and the applicant had had a verbal altercation, after which he struck her and left the area. 13. Memorandum, dated 4 June 1985, Subject: Domestic Disturbance, from the Fort Benning Director of Personnel and Community Activities, advised the command would not tolerate the applicant's conduct toward his wife. Further incidents would result in a review of his privilege to continue living in family quarters. 14. The applicant accepted NJP on 16 July 1986 for one specification of willfully disobeying the order of a noncommissioned officer, and five violations of FTR, occurring between 12 and 27 June 1986. 15. On 29 July 1986, his commander notified him in writing of his intent to initiate separation action against the applicant under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The basis for this action was the applicant's unsatisfactory performance. The commander stated the least favorable discharge he could receive was a general discharge under honorable conditions. 16. On 28 October 1986, the applicant consulted with legal counsel and acknowledged his counsel had advised him of the basis for the contemplated separation action and understood its effects. He affirmed he: * had been advised of his rights as well as the effect of waiving these rights * he waived his right to an administrative separation board * did not intend to submit statements in his own behalf * understood he could encounter substantial prejudice in civilian life by receiving a general discharge under honorable conditions * could apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading his character of service; applying would not, however, imply his discharge would be upgraded 17. On or about 30 October 1986, the separation authority approved the commander's recommendation and directed the issuance of a General Discharge Certificate. On 5 November 1986, he was discharged accordingly. 18. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under honorable conditions (general). The separation authority was chapter 13, AR 635-200, and the narrative reason for separation was unsatisfactory performance. It also shows he completed 6 years, 10 months, and 3 days of net active creditable service. He was awarded or authorized: * Driver and Mechanic Badge with Driver Clasp * Army Service Ribbon * Army Good Conduct Medal (2nd Award) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Overseas Service Ribbon 19. A review of his available service record shows it was void of any documentation reflecting any medical issues the applicant might have had while on active duty. 20. There is no indication the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a - an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. A Soldier may be separated under the provisions of chapter 13 when it is determined that he is unqualified for further military service due to unsatisfactory performance. Criteria include: * in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * the seriousness of the circumstances is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale * it is likely that the Soldier will be a disruptive influence in present or future duty assignments * it is likely the circumstances forming the basis for initiation of separation proceedings will continue or recur * the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely 2. 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. It states, in pertinent part, that 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 is not an investigative body and decides cases based on the evidence that is present in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's records show, having determined his behavior to be a disruptive influence and that he would not develop sufficiently to become a satisfactory Soldier, his chain of command initiated separation action against him. 2. The evidence of record appears to show his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights. The discharge proceedings were conducted in accordance with applicable law and regulations at the time. 3. The applicant alleges he was a good Soldier who was discharged due to medical issues. Per the Board's regulatory guidance, the applicant bears the burden of proving an error or injustice by a preponderance of the evidence. However, he gives no details as to what his medical issues were, and has provided no evidence to support his claim. Additionally, his available service record is void of any documentation showing he suffered from any medical conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005193 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005193 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2