RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 22 January 2004
         DOCKET NUMBER: AR2003088294


         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. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Ronald J. Weaver		Member
Mr. Arthur A. Omartian		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his discharge be upgraded to general or honorable and that his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 26 January 1983 show his first period of service as honorable.

2. The applicant states that his DD Form 214 does not reflect a honorable discharge for the first period of service, so he would be eligible to receive benefits. He also states that in the last 20 years he has been an upstanding citizen and an asset to his family and community. During his first tour of duty he had an excellent military record and unfortunately, on the second tour, he made mistakes that he now regrets and has paid for dearly by not being able to continue in the military and serve his country.

3. The applicant provides no documents to support his request.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of his DD Form 214 that occurred on 26 January 1983. The application submitted in this case is dated 20 February 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant's military records show that he enlisted in the Regular Army for 3 years as a private, pay grade E-1, on 25 February 1980 and was promoted to pay grade E-2 on the same date.

4. The applicant was promoted to pay grade E-3 on 25 February 1981.

5. On 2 February 1982, the applicant received a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for failure to go to his appointed place of duty. His punishment included extra duty for 7 days and reduction to pay grade E-2, suspended, to be automatically remitted if not vacated before 28 February 1982.

6. On 29 December 1982, the applicant was awarded the Good Conduct Medal for exemplary behavior, efficiency and fidelity for the period of service 25 February 1980 to 24 February 1983 (Date of separation on or about).
7. The applicant was promoted to pay grade E-4 on 1 January 1983.

8. On 5 January 1983, the applicant requested reenlistment for 3 years with a waiver for his Article 15. His waiver request was approved on 20 January 1983. He was discharged on 25 January 1983 and reenlisted on 26 January 1983.

9. On 11 May 1983, a Report of Suspension of Favorable Personnel Actions was initiated against the applicant for pending charges for court-martial scheduled for 7 July 1983.

10. On 7 June 1983, the applicant was tried by general court-martial of one specification of possession of marijuana and one specification of wrongful distribution of marijuana. His approved sentence included reduction to pay grade E-1, forfeiture of pay for 5 months, confinement at hard labor for 5 months and a bad conduct discharge (BCD). On 7 July 1983, the applicant was confined to the stockade. On 2 August 1983, the sentence was approved.

11. On 7 November 1983, the applicant stated that he did not desire a separation physical examination. On 9 November 1983, the applicant completed a mental status evaluation. He was found mentally responsible, to be able to distinguish right from wrong and able to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

12. On 14 November 1983, he was issued a BCD, in pay grade E-1, based on the result of a court-martial. His separation document indicates he had 5 months and 16 days net active service this period and 2 years, 11 months and 2 days total prior active service. The applicant had 123 days lost time from 7 July 1983 to 6 November 1983 due to confinement.

13. Army Regulation 15-180 provides for petitioning the Army Discharge Review Board (ADRB), using DD Form 293, for upgrade of the characterization for discharge. The regulation specifies that the ADRB may not consider an appeal for an upgrade from an applicant discharged as a result of a GCM.

14. Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

15. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor. 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 inappropriate.
16. Special Regulation 615-360-1, effective 24 June 1953, established the procedures to be followed in the separation of enlisted personnel from active military service at the time of the applicant's reenlistment. In pertinent part, it stated that a DD Form 214 would be furnished all enlisted personnel separated from active military service except to members of the Regular Army and Reserve Components who were reenlisted in the Regular Army at station of discharge within 24 hours of discharge.

17. Title 38, United States Code, chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military service when the following conditions are met: (1) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (2) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment."

18. Commander, Total Army Personnel message 150800Z, dated February 1995, clarified an earlier message concerning the requirement to add a statement in item 18 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." The remark was required for employment agencies to determine the eligibility criteria for former service members applying for unemployment compensation. 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-time of enlistment.

19. The Department of Veterans Affairs (VA), in determining qualifications for benefits administered by that agency, generally holds than 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.

DISCUSSION AND CONCLUSIONS:

1. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

2. The applicant's post service conduct does not warrant an upgrade and the applicant does not provide a sufficient reason for granting the relief he now requests. It would not be appropriate to change the records to show that he was discharged honorably from the reenlistment commencing on 26 January 1983.

3. The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time, and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.

4. It appears that the applicant's honorable discharge of 25 January 1983 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.

5. The circumstances of the applicant's honorable discharge of 25 January 1983 appear to have worked an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service. 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.

BOARD VOTE:

__jl____ __rw___ ___ao____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file. As a result,



the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 25 January 1983.

2. The Board further determined that 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 an upgrade of his discharge.





                  ___Joann Langston______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088294
SUFFIX
RECON
DATE BOARDED	20040122
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.