IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080000981 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an official discharge document (DD Form 214) and a medical review.

2.  The applicant states, in effect, that he was never notified of the final disposition of his appellate review.  On 20 November 1996, he received a copy of an action that should have taken effect on 9 December 1987.  The AHRC Form 1569 in lieu of a DD Form 214 proves that he was not officially notified or officially discharged from active duty.  He was never taken off involuntary excess leave status.  He was never given a discharge medical examination and he never signed a DD Form 214.

3.  The applicant provides a copy of AHRC Form 1569 (Transcript of Military Records); a copy of General Court-Martial Order Number 47, dated 18 November 1987; and Orders 125-2, dated 30 June 1986. 

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 records show that he enlisted in the U.S. Air Force on 11 October 1974, with 3 years and 1 day of prior active service.  His Primary Specialty Number and title was 73250 Personnel Specialist.  The highest grade he attained was pay grade E-4.

3.  The applicant’s military service records contain a DD Form 214 (Report of Separation from Active Duty), with an effective date of 10 January 1979, that confirms he was honorably released from active duty (REFRAD).  This document also shows that, at the time the applicant was REFRAD, he was credited with completing a total of 7 years and 4 months of net active service.

4.  On 16 December 1983, the applicant was appointed and entered active duty as a Reserve Commissioned Officer of the United States Army under Title 10, in the grade of second lieutenant.  The appointment was for an indefinite term.  Upon completion of the Field Artillery 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 11 July 1985.

5.  The applicant's military service records contain a copy of Department of the Army, Headquarters, 21st Support Command, APO New York, General Court-Martial Order Number 22, dated 30 May 1986.  This order shows the applicant was arraigned and tried before a general court-martial, which convened at Rheinberg, Germany, and documents the following charges, pleas, and findings:

      a.  Charge I, Article 112a, UCMJ, with Specification: Wrongful possession of 7.5 grams of Marijuana, 6.5 grams of hashish, and 1.5 grams of a hashish-tobacco mixture on 21 October 1985.  The applicant entered a plea of not guilty and was found guilty.  

      b.  Charge II, with the Specification 1: Wrongful possession of 4 rounds of 5.56 military ammunition on 21 October 1985.  The applicant entered a plea of not guilty and was found guilty.  

      c.  Specification 2:  Wrongfully importing into the Federal Republic of Germany, 7.5 grams of Marijuana, 6.5 grams of hashish, 1.5 grams of a hashish-tobacco mixture and 4 rounds of 5.56 military ammunition, on 21 October 1985.  (Guilty, except the words, “and 4 rounds of 5.56 military ammunition”).  

6.  On 2 April 1986, the applicant was sentenced to be dismissed from the Service.  On 30 May 1986, the applicant’s sentence was approved.

7.  On 4 June 1986, the applicant was placed in an involuntary excess leave status under the provisions of Army Regulation 630-5, paragraph 5-4, pending appellate review.

8.  On 30 January 1987, the U.S. Army Court of Military Review set aside the findings of guilty of Charge I and its Specification.  The remaining findings of guilty and the sentence were affirmed.  On 19 June 1987, the applicant’s petition for a grant of review by the United States Court of Military Appeals was denied.  The decision of the United States Army Court of Military Review, the record of trial, and the recommendation of The Judge Advocate General were transmitted to the Assistant Secretary of the Army (Manpower and Reserve Affairs).  On 
8 November 1987, the Secretary of the Army, ordered the dismissal executed.  

9.  The applicant’s military service records are absent any evidence that he received a medical examination before being placed on excess leave or that he received an official discharge document.  However, on 21 November 2007, the applicant was given AHRC Form 1569, which is an official replacement of his DD Form 214.  The AHRC Form 1569 replaced the DA Form 1569, which is a transcript of his military record.  

10.  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).

11.  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 from active duty training; dismissal or discharge, as appropriate; dropped 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.

12.  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 requests an official discharge document (DD Form 214) and a medical review / examination.

2.  The evidence of record shows the applicant was convicted by a General Court-Martial and was sentenced to be dismissed from the Service.  His sentence was approved on 30 May 1986.  The applicant was placed in an excess leave status on 4 June 1986 pending review.  On 18 November 1987, the convening authority’s findings of guilty of Charge I and its Specifications were set aside, and that Charge and Specification were dismissed by the United States Army Court of Military Review on 30 January 1987.  The remaining findings of guilty and the sentence were affirmed.  On 19 June 1987, the applicant’s petition for a grant of review was denied.  The convening authority ordered the dismissal executed.  

3.  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.  There is no evidence nor has the applicant presented any evidence to show that he did not receive a medical examination before being dismissed from service.  

4.  The evidence of record shows that the National Personnel Records Center, Military Personnel Records, St. Louis, Missouri, issued the applicant an AHRC  1569 (Transcript of Military Record), in lieu of a missing separation document to verify the applicant’s military service.  The evidence of record also shows that the AHRC Form 1569, dated 2 November 2007, correctly documents that the applicant served in the Air Force from 11 October 1974 to 10 January 1979 and that he was a member of the USAR from 16 December 1983 to 9 December 1987.  His last grade of rank was first lieutenant, and his service was terminated by dismissal.  Therefore, in view of all of the foregoing, the applicant is not entitled to the requested relief.

5.  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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080000981



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ABCMR Record of Proceedings (cont)                                         AR20080000981



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