IN THE CASE OF:	 

	BOARD DATE:	  14 August 2008

	DOCKET NUMBER:  AR20080001191 


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, reconsideration of his previous request to upgrade his under other than honorable conditions (UOTHC) discharge in order to receive Department of Veterans Affairs (DVA) benefits to go to school, and that he be issued two separate DD Forms 214 (Certificate of Release or Discharge from Active Duty) for prior periods of honorable service.

2.  The applicant states, in effect, that his DD Form 214 is error because it shows he only completed a 9-year enlistment.  The applicant continues that his record should reflect his "breaks in service" due to two previous periods of honorable service.  The applicant contends that he was absent without leave (AWOL) because his little brother was shot and intends to send additional proof.

3.  The applicant provides no additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070001555, dated 26 July 2007.

2.  The applicant has provided new arguments that will be considered by the Board.
3.  The applicant's record shows that he enlisted under the Delayed Entry Program on 12 July 1990 and entered active duty on 13 November 1990.  The applicant completed his military training and was awarded military occupational specialty 12B (Combat Engineer).  The applicant's records show that he reenlisted on 16 March 1994 and again on 19 July 1995.

4.  The applicant's record shows that he was AWOL during the period 23 April 1998 through 20 May 1998 (28 days).  The applicant's record does not show he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for this offense.

5.  The applicant's record shows that he again went AWOL during the period 2 June 1998 through 3 December 1998 (184 days), and on 10 December 1998 court-martial charges were preferred.

6.  The applicant's record shows that on 12 December 1998, 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.  His record shows that he acknowledged being advised of and understood his rights under the Uniform Code of Military Justice, that he was guilty of the charge preferred or a lesser included charge, that he could receive an 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 it he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.  The applicant's record shows he was placed in excess leave status, pending resolution of his separation request on 12 December 1998.

7.  On 23 April 1999, a memorandum from the applicant's unit commander recommended he be discharged under the provisions of Army 
Regulation 635-200, chapter 10, with a characterization of service of UOTHC.  In this recommendation it was noted that the applicant had two NJPs; however, the specifics of these NJPs are not in his record.

8.  On 30 April 1999, the discharge authority approved the applicant's discharge and directed that he be reduced to the rank of private/pay grade E-1 and was issued a UOTHC discharge.

9.  On 17 May 1999, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of court-martial with a UOTHC discharge in the rank of private/pay grade E-1.  This form also shows his net active service this period was for a total of 7 years, 11 months, and 2 days.
10.  Item 18 (Remarks) of the applicant's DD Form 214 shows the entry "Immediate Reenlistments This Period--19940316-19950718, 19950719-19980422."

11.  On 3 March 2006, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

12.  The applicant applied to the ABCMR on 24 September 2006 for an upgrade of his undesirable discharge to honorable.  The ABCMR denied his request on 10 April 2007.

13.  The applicant states that he would provide additional documentation to show proof his being AWOL was caused by his little brother being shot which was not previously reviewed by the ABCMR; however, to date he has failed to provided the Board with this documentation.

14.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

15.  Army Regulation 635-5 further states, in pertinent part, that a DD Form 214 will not be prepared to cover a period of service for which a previous DD Form 214 has been issued.  It also states that effective 1 October 1979, DD Forms 214 would no longer be issued for immediate reenlistments and that all service would be continuous from the date the last DD Form 214 was issued.

16.  Title 38 of the Code of Federal Regulations, 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:…(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."

17.  Title 38 of the Code of Federal Regulations, in pertinent part, permits the DVA to award benefits, including compensation for disabilities which were incurred in or aggravated by active military service, based on criteria set forth based on completion of specified periods of honorable service.

18.  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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because his AWOL offenses were due to his little brother being shot, and that two DD Forms 214 should be issued to cover his prior periods of honorable service giving him access to Veterans Benefits for school, was carefully considered and determined to be without merit.

2.  The applicant's records show that his separation under the provision of Army Regulation 635-200, chapter 10, is voluntary and he had to admit guilt to the charges against him.  The applicant’s record also shows he was AWOL during the periods 23 April 1998 to 20 May 1998 and 2 June 1998 through 3 December 1998 which resulted in 212 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

3.  Further, the applicant mentioned in his application that he would provide additional documentation to show that his little brother being shot was the reason he was AWOL, but he failed to do so.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant has failed to show the evidence through his record that the character of discharge issued to him was in error or unjust.

4.  Evidence of record shows that prior to the applicant's separation on 17 May 1999, Army Regulation 635-5 specified that DD Forms 214 would no longer be issued for immediate reenlistments.  Additionally, the regulation shows that all service would be continuous from the date the last DD Form 214 was issued.  Review of the applicant's record shows his first two periods of service are honorable as shown in item 18 of his DD Form 214.  However, evidence of record accurately reflects his overall service during his last term of service.

5.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Veterans Benefits.  However, in accordance with Title 38, U.S. Code, the DVA is permitted to award benefits based on criteria set forth based on completion of specified periods of honorable service.

6.  After a review of the available records and without independent evidence received from the applicant, it is concluded that the applicant has not proved his case by a preponderance of the evidence.  As a result, there is an insufficient evidentiary basis to support amendment of the original Board decision in this case.

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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AR20070001555 on 26 July 2007.



      ____________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)                                         AR20080001191





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ABCMR Record of Proceedings (cont)                                         AR20080001191



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