PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 June 2002
         DOCKET NUMBER: AR2002074429


         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
Ms. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Richard T. Dunbar		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.

---

2. The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

3. The applicant states that he ran into the wrong supervisor and went absent without leave (AWOL). He is dying (confirmed by Department of Veterans Affairs (VA) correspondence) and requests forgiveness.

4. The applicant’s military records show that he enlisted in the Regular Army on 4 November 1977 for 3 years. He was honorably discharged on 26 June 1980 for the purpose of reenlisting on 27 June 1980 for 6 years.

5. Between 7 February 1984 and 4 June 1985, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on five occasions for wrongfully using a habit-forming drug, to wit: marijuana; absenting himself from unit formation and physical training formation; failing to go to his appointed place of duty; wrongfully using marijuana; and wrongfully using some amount of marijuana.

6. On 6 August 1985, court-martial charges were preferred against the applicant charging him with AWOL for the period 11 June to on or about 25 July 1985.

7. On 29 August 1985, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits. He elected not to submit a statement in his own behalf.

8. On 5 September 1985, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

9. On 11 September 1985, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed 7 years, 8 months, and 25 days of creditable active service and had 44 days of lost time. His Certificate of Release or Discharge from Active Duty, DD Form 214, item 18 shows that he had a prior reenlistment for the period 4 November 1977 through 26 June 1980.

10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge UOTHC is normally considered appropriate.

11. The VA, in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service.

12. Commander, U. S. Total Army Personnel Command (PERSCOM) message 150800Z February 1995 clarified an earlier message concerning the requirement to add a statement in item18 of the DD Form 214 concerning a member’s initial term of service. It directed that the following statement would be added to all DD Forms 214 without exception: “Member (has) (has not) completed first term of service.” Normally, a member should not be considered to have completed the first full term of active service if separation occurs prior to the end of the initial contracted period of service. However, if a member reenlists prior to the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment and should be considered to have been completed upon execution of a reenlistment contract. If a soldier has reenlisted, he or she is considered to have completed the first full term of enlistment.

CONCLUSIONS:

1. 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 applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress. While the applicant may have gone AWOL because he “ran into the wrong supervisor,” that does not excuse his previous misconduct which included wrongfully using marijuana on three different occasions. There is insufficient reason for granting the relief he requests and it would not be appropriate to change the records to show that he was discharged honorably from the reenlistment commencing on 27 June 1980.

3. However, there is a concern that the VA does not recognize that the applicant satisfactorily completed his initial term of service. It appears that his honorable discharge of 26 June 1980 should be considered as having been issued as a complete and unconditional separation. Under current standards, if a member reenlists prior to the completion of that period of service the first term of service is effectively redefined by virtue of the reenlistment and should be considered to have been completed upon execution of a reenlistment contract. If a soldier has reenlisted, he or she is considered to have completed the first full term of enlistment.

4. The circumstances of the applicant’s honorable discharge of 26 June 1980 appear to have worked an injustice upon him by depriving him of consideration for certain VA benefits. However, the applicant should understand that the Department of Defense has no jurisdiction over the VA. The VA, in accordance with its own policies and regulations, may or may not grant entitlement to VA benefits based upon the correction recommended below.

5. 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 showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 26 June 1980.

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

BOARD VOTE:

__INW__ __KAN__ __RTD___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Irene N. Wheelwright ___
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002074429
SUFFIX
RECON
DATE BOARDED	2002/06/27
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1985/09/11
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	PARTIAL GRANT
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.