RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060013702 


	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. Gerard W. Schwartz

Acting Director

Mr. Gerald E. Vandenberg

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. David K. Haasenritter

Member

Mr. Edward E. Montgomery

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded from general to honorable, his date of separation be corrected to his ETS (expiration term of service) date of 19 July 1994 with retroactive entitlement to monetary benefits, the bar to reenlistment be removed, his separation program designator (SPD) be removed, and his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his correct dates of service.

2.  The applicant states he endured severe mistreatment and abuse from his company commanders that has resulted in mental and physical stress rendering him 100 percent disabled.  He states that he received significant harassment following his marriage including being told to get a divorce and stay with his own kind.  

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge) and two training certificates. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 4 September 1992, the date of his discharge.  The application submitted in this case was received 28 September 2006.

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 limitations 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 records show the applicant enlisted in the United States Army Reserve (USAR) on 15 December 1984 and served on initial active duty for training (IADT) under the split training program (3 June 1985 through 9 August 1985 and 2 June 1986 through 18 August 1986), a total of 4 months and 24 days.  He remained active in the USAR until 4 March 1987 when he enlisted (for three years) in the Regular Army (RA) through the Delayed Entry Program (DEP).  He entered active duty on 30 April 1987 and reenlisted for four years on 19 February 1990.

4.  On 19 October 1990, while stationed in Hawaii, the applicant married his first wife, a Japanese/Hawaiian.

5.  The applicant's service medical records are not associated with the file and there is limited information related to his medical problems.  The available records do show that applicant underwent surgery on his foot on 26 February 1991, was on profile on 29 January 1992 and the profile was made permanent on 6 May 1992.

6.  On 19 December 1991 a suspension of favorable personnel actions (FLAG), bar to reenlistment, was initiated due to substandard personal appearance and failure to meet weight control standards.  The bar was reviewed on 23 April 1992 and directed to remain in place.  There is no documentation of this Flag being removed.

7.  In January 1992, the applicant requested assistance from his Congressman in obtaining a medical discharge due to his foot problems.  He indicated that he had requested consideration for a medical separation six months prior to requesting assistance from the Congressman.

8.  A 30 March 1992 memorandum from Tripler Army Hospital indicates that the applicant had a Medical Evaluation Board (MEB) pending.  There is no indication of what the medical condition was or that the examination was ever completed.

9.  The applicant's record does not contain complete documentation of the actions that led to his separation.  Specifically, there is no documentation of the specifics of the court-martial charges preferred.  

10.  On 8 July 1992, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he was guilty of the charges or lesser-included charges that could result in a punitive discharge.  He had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.


11.  His counsel's statement noted that the preferred charges were related to financial problems and specifically to mail order purchases.  Counsel noted that the applicant had made some poor purchasing decisions and his financial problems worsened when he was forced to give up a part time job due to his foot problems.  Counsel noted the financial difficulties had only arisen within the last year and that the applicant did not deny having the financial difficulties.  Counsel requested that the command take into consideration that the applicant had given the Army 7 years of good service.

12.  On 10 July 1992, the acting unit commander recommended approval of the separation action stating, "Chapter 10 approval would be in the best interest of the Army.  This Soldier's record shows a blatant disregard for the property of others."

13. Also on 10 July 1992, the acting battalion commander recommended approval of the discharge stating "Soldier has a history of poor judgment and a lack of integrity.  Past incidents suggest future problems with this Soldier and more blemishes on the face of the Army.  I doubt that rehabilitation measures will correct this individual's sense of values and future performance."  

14.  On 14 July 1992 the discharge authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He also directed that the applicant be reduced to the lowest enlisted grade.

15.  The applicant was discharged on 4 September 1992 in the rank of private (E-1) for the good of the service in lieu of trial by court-martial with a UOTHC.  
He received an SPD of JFS (discharge in lieu of trial by court-martial). 

16.  The original 4 September 1992 DD Form 214 provides the following information at:
	
	a.  Item 11 (Primary Specialty) service in the military occupational specialty (MOS) 94B, Food Service Specialist, for 3 years and 1 month; and MOS 77F, Petroleum Supply Specialist, for 7 years and 3 months;

 	b.  Item 12a (date entered active duty this period), 5 December 1986;

	c.  Item 12b (separation date this period), 4 September 1992;

	d.  Item 12c (net service this period), 5 years and 9 months;

	e.  Item 12d (total prior active service), none;
	f.  Item 12e (total prior inactive service), none;

	g.  Item 13 (Decoration, Medals, Badges), award of the Army Achievement Medal, the Good Conduct Medal, the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon (2nd award), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and 

	h.  Item 18 (remarks), service in the DEP from 15 December 1984 through 4 December 1986 and that he had an immediate reenlistment on 20 February 1990. 

17.  On 16 July 2004 the Army Discharge Review Board (ADRB) granted the applicant's petition and upgraded his discharge from UOTHC to general.  This action also resulted in a restoration of the applicant's rank to specialist (E-4).

18.  In concert with the applicant's request to the ADRB, a statement from a former staff sergeant (SSG), who served with the applicant, was provided.  In that statement the SSG indicated he was personally knowledgeable of and witnessed the harassment that the applicant's command was exerting against the applicant.  He had personally heard derogatory comments and conversations relating to the applicant's marriage.  He also stated that he knew that the applicant was having monetary problems but knew that the applicant was paying his bills because he himself had loaned the applicant money to assist him in paying those bills.

19.  The DD Form 214 issued based on the ADRB action, indicates the same service information as reflected on the original DD Form 214 except it shows continuous honorable active service from 30 April 1987 through 12 February 1990 with a period of DEP of 4 March 1987 through 29 April 1987.

20.  Army Regulation 600-8-2, sets forth the regulations, policy and criteria for suspension of favorable personnel actions (FLAGS).  In pertinent part, the regulation requires initiation of a FLAG when a service member is under charges, restraint or investigation; fails to take or pass the Army Physical Fitness Test (APFT); or on entry into Weight Control Program.  The bar to favorable action is to remain in effect until the member is released without charges, charges are dropped, or punishment is completed; the day the Soldier passes the APFT; or on the day the commander decides that the Soldier is in compliance with the program. 


21.  Army Regulation 635-40 (Physical Evaluation for Retention or Separation), paragraph 4-3 provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. 

22.  Army Regulation 635-5 (Separation Documents) states that extreme care is to be used in completing the active duty and service blocks since post-service benefits, final pay, retirement credit, and so forth are based on this information.  The date to be used in the item 12b is the Soldier's transition date.  Item 12d is to list the total prior active service from previously issued DD Forms 214.  Item 12e is the total prior inactive service, from previously issued DD Forms 214.  Any DEP time that began on or after 1 Jan 85 is not creditable service for pay purposes and will not be entered in this block.  However, it is creditable service for completing the statutory mandatory service obligation, and will be entered at Item 18. 

23.  Army Regulation 635-200 (Personnel Separations Active Duty Enlisted Administrative Separations) sets forth the policies and procedures for the administrative separation of Soldiers.  In pertinent part, it states that Soldiers who do not conform to required standards of discipline and performance and Soldiers who do not demonstrate potential for further military service should be separated in order to avoid the high costs in terms of pay, administrative efforts, degradation of morale, and substandard mission performance.  It provides the authority and provisions governing the separation of Soldiers before ETS or fulfillment of active duty obligation.

24.  Army Regulation 635-200, chapter 3, outlines the criteria for characterization of service.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7b state that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  


25.  Army Regulation 635-200, chapter 10 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.  

26.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 16 July 2004.  As a result of the policy that the 3 year limit on filing to the ABCMR should commence on the date of final action by the ADRB, the applicant's request should be considered to have been filed in a timely manner.  

2.  The Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  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.  

3.  While there are some indications that the applicant may have been the recipient of some harassment, the fact remains that he acknowledged he had committed an offense that could lead to a punitive discharge and requested discharge in lieu of court-martial.  There is no documentation to show that the request was made under coercion or duress.



4.  Further, there is insufficient documentation to show that the applicant's service was so meritorious as to warrant an honorable discharge.  Therefore, a further upgrading of his characterization of service to honorable is not warranted at this time.

5.  The applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, which requires the use of the SPD JFS, discharge in lieu of trial by court-martial.  The applicant has failed provide mitigating documentation that would warrant a change of the reason for his separation.  Therefore no correction of the SPD code is warranted.

6.  The applicant had a flag in effect for weight control at the time of the proposed MEB.  Additionally, although a copy is not of record a second flag would have been imposed when the court-martial charges were preferred.  Either of these flags would precluded any favorable action from being taken including processing the a consideration for a medical separation.

7.  The applicant's total periods of service are either not reflected or are incorrectly reported on both the original DD Form 214 and the DD Form 214 issued following the favorable ADRB action.

8.  The applicant first entered military service in the USAR, on 15 December 1984.  He had two periods of initial active duty for training, totaling 4 months and 24 days, with 1 year, 9 months, and 24 days of inactive service prior to his enlistment in the RA.  

9.  He enlisted under the DEP for the period from 4 March 1987 through 29 April 1987.  This period of service does not constitute inactive service and is reported as a notation only at Item 18 on the DD Form 214.  

10.  The applicant entered active duty 30 April 1987, reenlisted on 20 February 1990, and was discharged on 4 September 1992.  The nature of his discharge ended his period of service and terminated all future obligated service.  Unless the applicant were to be administratively restored to active duty, there is no provision to grant a terminal date of service beyond the actual date his service ended.  The applicant has provided no evidence or arguments that would warrant a restoration to active duty.  

11.  Therefore, the date currently entered on the DD Forms 214 of 4 September 1992 is correct and proper and no retroactive monetary benefits are warranted.

12.  However, the DD Forms 214 do not reflect his USAR service or the correct date of his entry onto active duty.  Therefore, his records should be corrected to read as follows:

	a.  Item 12a, 1987 04 30;	b.  Item 12c, 05 04 05;

	c.  Item 12d, 00 04 24; and	d.  Item 12e, 01 10 05

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__PMS__  __EEM__  __DKH__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting the applicant's final DD Form 214 to read at 

	a.  Item 12a, 1987 04 30;	b.  Item 12c, 05 04 05;

	c.  Item 12d, 00 04 24; and	d.  Item 12e, 01 10 05.

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 granting him a upgrade of the characterization of his service to honorable, changing the reason for separation and associated SPD code, correction of his terminal date of service, or entitlement to any retroactive monetary benefits.  




__       Paul M. Smith_______
          CHAIRPERSON


INDEX

CASE ID
AR20060013702
SUFFIX

RECON
 
DATE BOARDED
20070501 
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19920904
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
144
2.
110
3.
108
4.

5.

6.