RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  
	DOCKET NUMBER:  AR20080000728 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, in effect, correction of his records to show that he was not dismissed from the U.S. Army, but instead resigned from the U.S. Army.

2.  The applicant states, in effect, that frivolous court-martial charges were filed against him by his company commander in retaliation for his failure to support the company commander’s decision to discharge several enlisted Soldiers that were assigned to his platoon for misconduct.  The applicant also states that, despite what the charges indicate, there were no false statements or altered police report and he was set-up because he disagreed with the abusive treatment of the company commander.  He adds that he gave the enlisted Soldiers fair and accurate Enlisted Evaluation Reports (EER) and offers that a review of all of his Officer Evaluation Reports (OER), both before and after the court-martial, will show that his performance was consistently above the average officer in his grade.  The applicant also points out that he resigned his commission in “the summer of 2005 (sic),” several months before he was issued orders and unfairly discharged on 19 December 1986.  Therefore, his Certification of Military Service should state “Resigned” and not “Dismissed.”

     a.  The applicant states he served 3 years in an enlisted status and was issued an honorable discharge.  He also asserts that during his service as a commissioned officer he was a good officer and excelled at all tasks assigned; however, his dream of being an officer was crushed because he did not achieve the rank of General.

     b.  The applicant states that after he was separated from the Army, his life began to spin out-of-control due to his use of drugs and alcohol.  He adds that he never received a DD Form 214 (Report of Separation from Active Duty).  The applicant also states that after several years of drug treatment and incarceration, he is finally beginning to accept what happened to him, but is embarrassed to discuss the situation with anyone.  He adds that he is currently serving a 4-year prison sentence for a domestic-related problem that occurred while he was under the influence of alcohol and drugs.  The applicant concludes by stating he is the Vice Commander of one of the prison’s veterans’ service groups that assists veterans in requesting upgrade of their discharge and states he is scheduled for release in July or August 2009.

3.  The applicant provides 2 self-authored statements, dated 13 March 2008 and 25 March 2008; a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 16 December 2007; National Personnel Records Center, Military Personnel Records, St. Louis, Missouri, letter, dated 9 June 2006; and National Archive and Records Administration (NA) Form 13038 (Certification of Military Service), dated 7 June 2006.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military service record shows that he enlisted in the U.S. Army Reserve (USAR) on 15 March 1974 and entered active duty in the Regular Army (RA) for a period of 3 years on 13 June 1974.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 71B (Clerk Typist).  The applicant was promoted to the rank of specialist four/pay grade E-4 on 13 July 1975.  This was the highest rank the applicant attained during this period of military service.

3.  The applicant’s military service record contains a DD Form 214 (Report of Separation from Active Duty), with an effective date of 10 June 1977, that confirms he was honorably released from active duty (REFRAD) under the provisions of paragraph 5-31, Army Regulation 635-200, and transferred to the USAR Control Group (Reinforcement), Reserve Personnel and Administration Center (RCPAC), St. Louis, Missouri.  This document also shows that, at the time the applicant was REFRAD, he was credited with completing 2 years, 11 months, and 28 days net active service during this period.

4.  The applicant's military service record contains a copy of Headquarters, Office of The Adjutant General, U.S. Army, RCPAC, St. Louis, Missouri, Orders
07-144463, dated 11 July 1978, which show the applicant was relieved from the USAR Control Group (Reinforcement), effective 24 August 1977, and assigned to the Louisiana (LA) Army National Guard (ARNG) for enlistment.

5.  The applicant's military service record contains a copy of National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows the applicant was honorably separated from the LAARNG, effective 24 August 1978, and transferred to the USAR Control Group (Standby), RCPAC, St. Louis, Missouri.  This document also shows the applicant was credited with completing 1 year net service during this period.

6.  The applicant's military service record contains an NGB Form 22 (Report of Separation and Record of Service) that shows the applicant enlisted in the LAARNG on 16 January 1981 and was honorably discharged from the LAARNG, effective 15 May 1982.

7.  On 16 May 1982, the applicant was appointed and entered active duty as an RA commissioned officer in the grade of second lieutenant.  Upon completion of the Transportation Officer Basic Course, he was detailed to the Transportation Corps and entered active duty.  The applicant was promoted to the grade of first lieutenant/pay grade O-2, effective 26 November 1983.

8.  The applicant's military service record contains a copy of Headquarters, Department of the Army, Washington, District of Columbia, General Court-Martial Order Number 61, dated 19 December 1986.  This order shows the applicant was arraigned and tried before a general court-martial, which convened at Fort Lewis, Washington, and documents the following charges, pleas, and findings.

     a.  Charge I, Article 107, UCMJ, with Specification 1, that the applicant did make a false official statement with intent to deceive on 23 May 1984.  The applicant entered a plea of not guilty and was found guilty, by exceptions and substitutions.

     b.  Charge I, Article 107, UCMJ, with Specification 2, that the applicant did make a false official statement with intent to deceive on 12 October 1984.  The applicant entered a plea of not guilty and was found guilty, by exceptions and substitutions.

     c.  Charge II, with the Specification that the applicant did wrongfully alter a copy of a police report between 14 March 1984 and 23 May 1984 under circumstances constituting conduct unbecoming an officer and a gentleman.  The applicant entered a plea of not guilty and was found guilty.

     d.  On 22 May 1985, sentence was adjudged.  The applicant’s sentence was to be dismissed from the Service. 

     e.  On 7 August 1985, the convening authority approved the sentence and ordered the sentence duly executed, except for that part pertaining to dismissal from the Service.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a U.S. Army Court of Military Review, prior to transmission to the Assistant Secretary of the Army (Manpower and Reserve Affairs) for his action.

     f.  This document notes that the above proceedings were promulgated in Headquarters, I Corps and Fort Lewis, Fort Lewis, Washington, General Court-Martial Order Number 6, dated 7 August 1985.

9.  The applicant’s military service record contains a copy of Headquarters,
I Corps and Fort Lewis, Fort Lewis, Washington, Orders 159-400, dated 8 August 1985.  These orders show, in pertinent part, that the applicant was placed in an excess leave status under the provisions of Army Regulation 630-5, paragraph
5-4, pending final decision on his discharge from the U.S. Army.

10.  Headquarters, Department of the Army, Washington, District of Columbia, General Court-Martial Order Number 61, dated 19 December 1986, shows that the approved findings of guilty and the applicant’s sentence was affirmed by the U.S. Army Court of Military Review; the petition of the applicant for a grant of review by the U.S. Court of Military Appeals was denied; and the sentence as affirmed by the U.S. Army Court of Military Review was approved and ordered duly executed by the Assistant Secretary of the Army (Manpower and Reserve Affairs) on 5 November 1986.

11.  The applicant’s military service records are absent any evidence that he submitted his resignation as a commissioned officer of the Army or that a request for resignation was approved by the appropriate separation authority.

12.  In support of his application, the applicant provides the following documents.

     a.  Two self-authored statements, dated 13 March 2008 and 25 March 2008, and a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 16 December 2007, that presents the reasons for his request, which were previously summarized and considered in this Record of Proceedings. 




     b.  National Personnel Records Center, Military Personnel Records, St. Louis, Missouri, letter, dated 9 June 2006, that shows, in pertinent part, the applicant 
was provided copies of all existing separation documents filed in his military service record, along with an NA Form 13038 (Certification of Military Service), in lieu of a missing separation document, to verify the applicant’s military service.

     c.  NA Form 13038 (Certification of Military Service), dated 7 June 2006, that shows the applicant was a member of the RA from 16 May 1982 to 19 December 1986, his last grade of rank was first lieutenant, and that his service was terminated by dismissal.

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Enlisted Qualification Record, Officer Qualification Record, Personnel Qualification Record (PQR), Officer Record Brief (ORB), enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket (MPRJ), or any other document authorized for filing in the Official Military Personnel File (OMPF).

14.  Section II (Preparation of DD Form 214) of Army Regulation 635-5 contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 23 (Type of Separation), in pertinent part, lists the various terms for use with officer personnel separations and includes, relief from active duty; discharge; retirement; separation to continue on active duty in another status; relief form active duty training; dismissal or discharge, as appropriate; drop from the rolls of the Army; and release from custody and control of the Army.  This item also shows dismissal or discharge, as the appropriate term to be used, consistent with the sentence in the General Court-Martial Order.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his Certification of Military Service should be corrected to show his service was terminated by resignation because he resigned his commission in the summer of 1985, before he was discharged on 19 December 1986.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to support his claim that he resigned his commission in the U.S. Army in the summer of 1985, or any other time during the period of service under review.

3.  The evidence of record shows that pursuant to a General Court-Martial on
22 May 1985, the applicant was sentenced to be dismissed from the Service.  His sentence was approved on 7 August 1985, except for that part pertaining to dismissal from the Service, subject to review of the sentence by a U.S. Army Court of Military Review.  The evidence of record also shows that the applicant was placed in an excess leave status on 8 August 1985 pending this review.  The evidence of record further shows that the applicant’s sentence was affirmed by the U.S. Army Court of Military Review, ordered duly executed by the Assistant Secretary of the Army (Manpower and Reserve Affairs) on 5 November 1986, and the applicant was dismissed from the U.S. Army on 19 December 1986.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the “presumption of regularity” is based on Army Regulation 635-5, Chapter 1 (General), which prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  Therefore, in the absence of evidence to the contrary, it is concluded that the applicant was issued a DD Form 214, at the time of his dismissal from the Service and that it correctly documented the applicant’s military service during this period of service, including the authority and type of separation.

5.  The evidence of record shows that the National Personnel Records Center, Military Personnel Records, St. Louis, Missouri, issued the applicant an NA Form 13038 (Certification of Military Service), in lieu of a missing separation document to verify the applicant’s military service.  The evidence of record also shows that the NA Form 13038, dated 7 June 2006, correctly documents that the applicant 

was a member of the RA from 16 May 1982 to 19 December 1986, his last grade of rank was first lieutenant, and that his service was terminated by dismissal. Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records in this case.

6.  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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  _____X___  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___________X___________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000728



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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