IN THE CASE OF: BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160005325 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 IN THE CASE OF: BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160005325 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. IN THE CASE OF: BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160005325 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 his under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states, in effect: * he had planned on the military being his career; however, everything changed after he reenlisted and was transferred to Fort Carson * he felt from the start that his platoon leader was out to get him and send him home * he eventually felt he could do nothing right; he felt like giving up * he was not informed that anything was going on until 18 March 1976 (his discharge date) * he was not allowed to speak to anyone or defend himself; he feels that was an injustice 3. The applicant provides copies of DD Forms 214 (Report of Separation from Active Duty) for the periods ending 27 June 1974 and 18 March 1976, respectively. 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 1 August 1972. He completed his initial entry training and was awarded military occupational specialty 12B (Combat Engineer). He was honorably discharged on 27 June 1974 for the purpose of immediate reenlistment. 3. The applicant reenlisted on 27 June 1974 and remained on active duty. The highest rank/grade he attained while on active duty was specialist four/E-4. 4. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following eight occasions: a. on 13 February 1974, for failing to go at the time prescribed to his appointed place of duty, to wit: guard duty on 10 February 1974; b. on 24 December 1974, for failing to go at the time prescribed to his appointed place of duty, to wit: guard duty from on or about 23 December 1974 through on or about 24 December 1974; c. on 21 January 1975, for absenting himself from his unit (AWOL) from on or about 15 January 1975 through on or about 20 January 1975; d. on 10 February 1975, for absenting himself from his place of duty, to wit: Charge of Quarters, from on or about 8 February 1975 through on or about | 9 February 1975; e. on 31 March 1975, for failing to go to his appointed place of duty on or about 9 February 1975 and for being AWOL from on or about 21 March 1975 through on or about 24 March 1975; f. on 7 October 1975, for being AWOL from on or about 28 September 1975 through on or about 2 October 1975; g. on 4 November 1975, for being AWOL from on or about 17 October 1975 through on or about 17 October 1975; and h. on 20 January 1976, for absenting himself from his appointed place of duty on 9 December 1975 and 12 December 1975; and for being AWOL from on or about 29 December 1975 through on or about 5 January 1976. 5. The applicant's record contains a "Transmittal of Board Results" memorandum, dated 6 February 1976, that contained the following statement: Transmitted herewith is your copy of the Summary of Board Proceedings, and the Verbatim and Findings and Recommendations Resulting from the Board of Officers called to consider your case pursuant to Letter Orders Number 180, Headquarters, Fort Carson, 4th Infantry Division (Mechanized), dated 14 February 1976. 6. This aforementioned Summary of Board of Proceedings was not available for review in this case. 7. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge process. However, his record contains a DD Form 214, which he signed, that identifies the authority and reason for his discharge. 8. The applicant's DD Form 214 shows he was discharged on 18 March 1976, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13-5a(1), by reason of misconduct - discreditable incidents - civilian or military. It further shows: * he was discharged in the rank/grade of private/E-1 * his service characterized as under other than honorable conditions * he was issued a DD Form 258A (Undesirable Discharge Certificate) * he had 25 days of lost time 9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. 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, which is what the Army did was correct. It is not an investigative agency. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. b. Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. 2. The applicant's record is void of specific facts and circumstances surrounding his discharge. However, he accepted NJP on eight occasions and was AWOL multiple times. A memorandum titled "Transmittal of Board Results" indicates he was considered by a Board of Officers for separation from the Army on or about 6 February 1976, although the board proceedings are not available for review. 3. The applicant contends he was not informed of any issues until his discharge date and he was not able to speak to anyone or defend himself. Based on the aforementioned instances of eight NJP occurrences and the evidence that a Board of Officers was convened, it would seem the applicant was informed and knew the circumstances surrounding his discharge. 4. There is a presumption of regularity in the conduct of government affairs. This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. It is presumed that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. 5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The characterization of service he received was commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005325 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005325 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2