RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 January 2004
         DOCKET NUMBER: AR2003088746


         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. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Yolanda Maldonado		Member
Mr. Lester Echols		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 under other than honorable conditions (UOTHC) be upgraded to honorable.

2. The applicant states that he received an Honorable Discharge Certificate for his service from 21 February 1979 through 29 November 1981 and his DD Form 214 (Certificate of Release or Discharge From Active Duty) should say the same. He just found out that he did not have an honorable discharge when he was turned down for a home loan from the Department of Veterans affairs (VA). He was told that a fire in St. Louis destroyed all records before 1981 and they would have to be recreated. He should have an honorable discharge for 29 November 1981.

3. The applicant provides a copy of his Honorable Discharge Certificate, dated 29 November 1981, his UOTHC Certificate, dated 7 May 1985, two Certificates of Achievement, and an Army Achievement Medal Certificate.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error, which occurred on 7 May 1985, the date of his discharge. The application submitted in this case is dated 28 March 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 for 3 years and entered active duty on 21 February 1979. He completed training as a tactical communications systems operator and was assigned to Germany. On 11 December 1980 he was punished under Article 15, Uniform Code of Military Justice (UCMJ) for failure to obey a lawful order of a superior noncommissioned officer. His punishment included a suspended pay grade reduction, a forfeiture of pay, and extra duty.

4. On 30 April 1981 he received a Certificate of Appreciation for his meritorious service during a field training exercise in Germany. He was promoted to pay grade E-4 effective 11 June 1981. On 17 September 1981 he was punished under Article 15, UCMJ for failure to obey a lawful order of a superior commissioned officer. His punishment included a suspended pay grade reduction and a forfeiture of pay. On 2 October 1981 the suspended reduction to pay grade E-3 was vacated and he was reduced to pay grade E-3.

5. Effective 29 November 1981, the applicant was issued an Honorable Discharge Certificate after completion of 2 years, 9 months, and 9 days service based on an immediate reenlistment on 30 November 1981 in the pay grade of E-3.

6. On 1 July 1982, while assigned to Fort Campbell, Kentucky, he was punished under Article 15, UCMJ for failure to go to his place of duty. The imposed punishment included a suspended reduction in pay grade, a suspended forfeiture of pay, and extra duty.

7. The applicant plead guilty and was found guilty by a special court-martial on 31 August 1982 of 10 days absent without leave (AWOL). The approved punishment was confinement at hard labor for 18 days and reduction to pay grade E-1. On 16 May 1983, he received a unit Certificate of Appreciation for performance of his duties for the period 10 June 1982 to 30 April 1983.

8. The applicant was assigned to Korea from 14 July 1983 through 13 July 1984. On 9 April 1984, he was awarded the Army Achievement Medal for support of Exercise Team Spirit 1984 during the period 12 to 31 March 1984.

9. The applicant failed to report for assignment upon returning from Korea and was declared AWOL on 20 August 1984. He returned to military control on 24 March 1984 after 217 days AWOL.

10. Charges were referred on the applicant for the AWOL offense on 29 March 1985. On the same date the applicant, after consulting with counsel, requested discharge for the good of the service in lieu of trial by court-martial. In his request he acknowledged that he was guilty of the offense that could result in a punitive discharge and that he had no desire for continued military service. He also acknowledged that the type of discharge he might be granted would result in the loss of many or all Army and veteran's benefits. He declined to submit statements in his own behalf.

11. On 9 April 1985, the separation authority, a major general, approved the request and directed discharge under other than honorable conditions at the lowest enlisted grade. Effective 7 May 1985 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10. He had 5 years, 6 months, and 19 days creditable service and 240 days lost time. He was also issued an Under Other Than Honorable Conditions Discharge Certificate.


12. There is no evidence of record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year time limit.

13. 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

14. Army Regulation 635-5 provides the policy for separation documents including the DD Form 214. The regulation provides that a DD Form 214 will not be prepared for enlisted members discharged for the purpose of immediate reenlistment in the Regular Army.

15. Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), that pertains to the VA, 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:…(2) 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 (3) 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.”

16. 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.

DISCUSSION AND CONCLUSIONS:

1. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.




2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service and he is not entitled to an honorable characterization of service for his discharge of 7 May 1985.

3. The applicant was properly not issued a DD Form 214 upon his honorable discharge of 29 November 1981 because he immediately reenlisted on 30 November 1981. The total of his service was entered on his DD Form 214 when he was discharged on 7 May 1985.

4. Since the applicant would have been eligible for an honorable discharge on 29 November 1981, it appears that the VA is statutorily required to treat him as an honorably discharged veteran during his first period of service. However, eligibility for veterans' benefits does not fall within the purview of the Army. He should contact a local office of the VA to inform them, if necessary, of the applicable statute and request further assistance to appeal the earlier decision.

5. Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 May 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 May 1988. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

___ao___ __ym____ ___le_____ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  ___Arthur A. Omartian__
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088746
SUFFIX
RECON
DATE BOARDED	20040127
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19850507
DISCHARGE AUTHORITY	AR 635-200, CH 10
DISCHARGE REASON	A71.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.02
2.
3.
4.
5.
6.