PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 April 2002
         DOCKET NUMBER: AR2002070001


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Mr. Thomas E. O’Shaughnessy, Jr.		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to a general, under honorable conditions discharge (GD).

3. The applicant states, in effect, that he makes no excuses for his actions because he was totally wrong. He claims that he has suffered a great deal due to his past indiscretions in the military and holds himself responsible and totally accountable for his actions. However, he is now 41 years of age and has since made vast modifications with regard to his behavior and value system. He has gained tremendous respect for authority and has become a responsible and productive member of his community. He states that he is currently employed with the Job Corps Youth Program in his community and his job brings him into contact with young people, who like himself when he was young, lack respect for authority. He claims that his past indiscretions allow him to identify and establish a rapport with them in order to help instill in them the characteristics they will need to become successful productive members of society. If his discharge is upgraded, he intends to show it to these young people with the hope it will show them that there are benefits that come with changing for the better. He concludes by commenting that he has learned the importance in investing in the community and has turned his life over to God; and he has learned that he has a obligation to his community and his family to live a responsible and productive life. In support of his application, he submits four letters from members of his community attesting to his good character, a certificate of award for completing a workforce readiness life skills course, a police report from the Metro-Dade Police Department, Miami, Florida, that confirms he has no record, and a copy of his separation document (DD Form 214).

4. The applicant’s military records show that on 17 May 1978, he entered the Regular Army for 3 years and that he continuously served on active duty for
3 years and 2 days, until being honorably separated for the purpose of immediate reenlistment on 18 May 1981.

5. On 19 May 1981, while serving in Germany, the applicant reenlisted for
4 years, the enlistment under review. At the time of his reenlistment, he held the military occupational specialty (MOS) 16D (Hawk Missile Crewman) and the rank and pay grade of sergeant/E-5 (SGT/E-5).

6. The applicant’s record confirms that the highest rank and pay grade he held on active duty was SGT/E-5. It also shows that during his tenure on active duty, he earned the following awards: Army Good Conduct Medal (2^nd Award); Army Service Ribbon; Overseas Service Ribbon: and NCO Professional Development Ribbon. There are no other acts of valor, significant achievement, or service warranting special recognition documented in his record. However, there is an extensive disciplinary history recorded for the period of enlistment under review.
7. The applicant’s disciplinary record for the enlistment under review includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following three separate occasions for the offenses indicated: 25 July 1984, for four specifications of failure to go to his appointed place of duty; 29 October 1984, for failure to pay just debts and two specifications of uttering bad checks; and 9 November 1984, for two periods of being absent without leave (AWOL) from his unit during the periods 1 to 5 and 6 to 8 November 1984. In addition, he was formally counseled by members of his chain of command for the following infractions: reporting late to his appointed place of duty; failure to report to his appointed place of duty; indebtedness; bad checks; conduct unbecoming of an noncommissioned officer; and for being AWOL.

8. On 5 December 1984, the applicant was notified of his unit commander’s intent to initiate action to separate him under the provisions of Army Regulation 635-200 for the reasons indicated: paragraph 13-2, for unsatisfactory performance; paragraph 14-12b, for a pattern of misconduct; and paragraph
14-12c, for the commission of a serious offense. The unit commander stated that the basis for the contemplated separation action was the applicant’s unsatisfactory duty performance and misconduct, as evidenced by his failure to pay just debts, attitude, conduct, and numerous violations of Article 86 of the UCMJ that include failure to repair and AWOL and his record of NJPs.

9. On 6 December 1984, the applicant acknowledged receipt of the separation action notification. He consulted with legal counsel, and after being advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of rights; he completed his election of rights by waiving his right to have his case considered by and to appear before an administrative separation board, and he elected not to submit a statement in his own behalf.

10. On 2 January 1985, the separation authority approved the separation action and directed that the applicant receive an UOTHC discharge for a pattern of misconduct and the commission of a serious offense under the provisions of paragraphs 14-12b and 14-12c of Army Regulation 635-200.

11. On 21 January 1985, the applicant was discharged accordingly. At the time of his separation, he had completed a total of 6 years, 7 months, and 12 days of creditable active military service, and he had accrued a total of 7 days of time lost due to AWOL.

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12. On 28 February 1986, the Army Discharge Review Board determined the applicant’s discharge was proper and equitable, and it denied his request for an upgrade of the character of his discharge and for a change to the narrative reason for his separation.

13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An honorable or general discharge may be awarded; however, an UOTHC discharge is normally considered appropriate for members separated under these provisions.

14. Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparing and distributing DD Form 214. Paragraph 2-4, states in effect, that for soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable the following entry will be made in Item 18 (remarks) “Continuous Honorable Active Service: from (first day of service which DD Form 214 was not issued) until (date before commencement of current enlistment).”

CONCLUSIONS:

1. The Board notes the applicant’s contentions and while it wishes to congratulate him on his excellent post service conduct and good citizenship, it finds these factors alone are not sufficiently mitigating to warrant the requested relief.

2. The applicant’s administrative separation was accomplished in accordance with applicable regulations in effect at the time. In the opinion of the Board, based on the applicant’s misconduct and poor duty performance, the discharge he received was appropriate and accurately reflects his overall record of service.

3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case, and the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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4. The evidence of record confirms that the applicant initially entered active duty in the Regular Army on 17 May 1978, and that he served honorably until being discharged on 18 May1981, for the purpose of immediate reenlistment. On
19 May 1981, he immediately reenlisted for 4 years and was separated from that period of service with an UOTHC discharge.

5. The Board concludes that, in accordance with the applicable regulation, the applicant’s DD Form 214 should have contained the following entry in Item
18 (Remarks): “Continuous Honorable Active Service: 780517-810518”, and it finds it would be appropriate and in the interest of equity to add this statement to his separation document at this time.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by adding the following entry to Item block 18 (Remarks) of the applicant’s DD Form 214, dated 21 January 1982: “Continuous Honorable Active Service: 780517-810518”.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

AAO HOF TEO GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Arthur A. Omartian
                  CHAIRPERSON

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INDEX

CASE ID	AR2002070001
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/04/30
TYPE OF DISCHARGE	( UOTHC)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR635-200 . . . . .
DISCHARGE REASON	CH 14, COSO
BOARD DECISION	(Partial Relief)
REVIEW AUTHORITY
ISSUES 1.	144.6730
2.
3.
4.
5.
6.