ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 April 2019 DOCKET NUMBER: AR20160018598 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Report of Separation from Active Duty), for the period ending 20 March 1975 * Memoranda from the Army Discharge Review Board (ADRB), dated 21 April 1982, 5 May 1982, 19 August 1982, and 2 December 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant makes no statement in his behalf. 3. The applicant enlisted in the Regular Army on 29 December 1972. He was honorably discharged on 20 March 1975 for the purpose of immediate reenlistment. He reenlisted in the Regular Army on 21 March 1975. 4. The applicant’s record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, [Uniform Code of Military Justice] UCMJ) that shows he received non-judicial punishment (NJP) on 14 January 1977, under the provisions of Article 15 of the UCMJ, for: * without authority, absenting himself from his place of duty, on or about 3 January 1977 until on or about 7 January 1977 * without authority, absenting himself from his place of duty, on or about 10 January 1977 until on or about 11 January 1977 5. The applicant’s record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) that shows he received NJP on 30 March 1977, under the provisions of Article 15 of the UCMJ, for: * without authority, absenting himself from his place of duty, on or about 14 March 1977 until on or about 18 March 1977 * without authority, absenting himself from his place of duty, on or about 26 March 1977 until on or about 28 March 1977 6. The applicant was notified of his immediate commander's intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13-5b(3), by reason of unsuitability. 7. The applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, chapter 13-5b(3), its effect of the rights available to him, and of the effect of any action taken by him to waive his rights. a. The applicant acknowledged receipt of the proposed separation memorandum. He requested representation by counsel and personal appearance before, and consideration of his case by, a board of officers. He waived his right to submit a statement in his own behalf. b. The applicant acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if an under honorable condition discharge, was issued to him. 8. An administrative separation board convened on 8 June 1977 to consider the applicant's proposed separation under the provisions of Army Regulation 635-200, chapter 13-5b(3) by reason of unsuitability. The board found him unsuitable for further service and recommended his discharge from the Army by reason of unsuitability, with the issuance of a General Discharge Certificate. 9. The separation authority approved the administrative separation board's recommendation and the applicant's discharge on 20 July 1977, by reason of unsuitability, and directed that he be issued a General Discharge Certificate. 10. The applicant was discharged on 20 July 1977. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13-5b(3), by reason of unsuitability and his service was characterized as under honorable conditions (general). 11. Army Regulation 635-200 provides the authority for the separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable and General Discharge Certificates. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that partial relief was warranted. Based upon multiple occasions of misconduct, the Board found that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request. However, prior to closing the case, the Board noted that the applicant completed one full term of service honorably and that is not currently noted on his DD Form 214. Therefore, the Board recommended that the continuous honorable service of the applicant be noted on the DD Form 214. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant : X X X Partial Grant : : : Formal Hearing Grant : : : Deny BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 29 December 1972 until 19 March 1975.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable. 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. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 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, 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. ABCMR Record of Proceedings (cont) AR20160018598