IN THE CASE OF:
BOARD DATE: 6 October 2015
DOCKET NUMBER: AR20150002205
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 discharge.
2. He also requests this Board notify the Department of Veterans Affairs (VA) by letter that his discharge is not dishonorable; it is under other than honorable conditions.
3. The applicant states:
* all his VA records show is a dishonorable discharge from 12 January 1990 to 28 June 1991
* this is not true according to his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* it should read under other than honorable conditions discharge and the Board should send a letter to the VA to correct this error
* during the period 12 January 1990 to 28 June 1991 he had a medical condition (hypertension) that was beyond his control
* prior to finding out about his blood pressure, he had done things the normal way
* when he went to the emergency room at Fort Riley, KS, his blood pressure was too high; there was no medication available to keep his blood pressure down
* this caused him black-out periods during which he was unaware of any incidents that could have occurred
* it is like being asleep then waking up with everyone around you going crazy
* his service from 22 July 1977 to 11 January 1990 was honorable
4. The applicant provides his DD Form 214 and VA rating decision.
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 records show he enlisted in the Regular Army (RA) on 22 July 1977 and he held military occupational specialty 75D (Personnel Records Specialist). He served in Germany from November 1982 to April 1984 and in Korea from January 1989 to February 1990.
3. He reenlisted in the RA on 27 April 1981 for 3 years, on 2 March 1984 for 6 years, and on 12 January 1990 for 6 years. He was promoted to sergeant (SGT)/E-5 in September 1980 and reduced to specialist four/E-4 (SP4)/E-4 in July 1987. He was promoted back to SGT/E-5 in August 1989 and reduced back to SP4/E-4 on 9 May 1991.
4. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his record contains:
a. Orders 177-201, issued by Headquarters, Combined Arms Center, Fort Leavenworth, KS on 26 June 1991 ordering his discharge from the Army in the rank/grade of private/E-1 effective 28 June 1991 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).
b. A DD Form 214 that shows he was discharged on 28 June 1991 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct commission of a serious offense in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 13 years, 11 months, and 7 days of creditable active service. It also shows in:
* item 18 (Remarks) - Continuous Honorable Service from 770722-900111
* item 24 (Character of Service) - Under Other Than Honorable Conditions
* item 26 (Separation Code) - JKQ
5. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
6. He provides a VA rating decision, dated 25 November 2008, awarding him service-connected disability compensation for hypertension (at 60 percent), cardiovascular disease (at 100 percent), and hearing loss (at 0 percent).
7. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.
a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldiers overall record.
b. 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.
c. 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.
d. Paragraph 3-10 states a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
8. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The burden of proof is with the member.
DISCUSSION AND CONCLUSIONS:
1. The applicants record is void of the complete facts and circumstances that led to his discharge. However, his service records contain a DD Form 214 that shows he was discharged on 28 June 1991 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct commission of a serious offense with an under other than honorable conditions discharge.
2. Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. This misconduct also rendered his service unsatisfactory. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.
3. The applicant's DD Form 214 already reflects his honorable service from 22 July 1977 (the date of his first enlistment) to 11 January 1990 (the date prior to the date of his last reenlistment) in item 18. Additionally, his characterization of service (under other than honorable conditions) and corresponding separation code are also properly listed in items 24 and 26 respectively.
4. The applicant did not receive a dishonorable discharge. A Soldier is given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. A court-martial discharge is a punitive discharge. Chapter 14 of Army Regulation 635-200 is an administrative discharge. There is no evidence the applicant was convicted by a general court-martial and nowhere in his military records does it show he received a dishonorable discharge.
6. The ABCMR corrects military records. Acting as a liaison or counsel between an applicant and the VA is not within the purview of this Board. Additionally, the ABCMR does not grant requests for upgrading discharges solely for the purpose of making one eligible for veterans or other benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. The granting of veteran's benefits is also not within the purview of the ABCMR. Therefore, any questions regarding eligibility for benefits or issues dealing with the VA should be addressed to the VA by the applicant.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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.
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