IN THE CASE OF:	  

	BOARD DATE:	  4 September 2008

	DOCKET NUMBER:  AR20080006958 


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 correction of his military records to show that he was granted a complete and unconditional discharge on 2 November 1980.

2.  The applicant states, in effect, that he would like his records to show that he had satisfied his previous term of contractually obligated service on 2 November 1980, thereby severing that prior honorable term of service from his last term of less than honorable service in order to be entitled to certain Department of Veterans Affairs (VA) benefits.  He asks the Board to consider the whole man concept and to look at his otherwise honorable service, consisting of 3 years, 11 months and 9 days, and not to focus only on the few military offenses that led to his final discharge.

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), Reenlistment Contract (DD Form 4/1), five letters of support, and nine photographs of homes that he built.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant’s military records to upgrade his discharge to honorable and to restore his rank to specialist, pay grade E-4.

2.  Counsel states that the applicant’s last discharge was too harsh and wants the Board to consider his post-service conduct in assessing the merits of his application.

3.  Counsel provides no additional documentation.

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.  On or about 19 January 1974, the applicant enlisted in the United States Army Reserve (USAR).  On 22 February 1974, he was ordered to active duty for training (ADT) at Fort Lee, Virginia.  He completed his initial training and was awarded military occupational specialties (MOS’s) 76Q (Equipment Repair Parts Specialist) and 76P (Stock Control and Accountability Specialist).

3.  On 19 July 1974, the applicant was released from ADT and returned to his USAR unit.  He had completed 4 months and 28 days of creditable active duty.

4.  On 23 November 1976, the applicant enlisted in the Regular Army beginning in the rank of private, pay grade E-1.  He was assigned to Fort Knox, Kentucky, for basic armor training.  He was awarded MOS 19D (Cavalry Scout).

5.  On 8 April 1977, the applicant was assigned for duty as a scout loader with the 3rd Squadron, 11th Armored Calvary Regiment, in the Federal Republic of Germany.

6.  On or about 21 May 1980, the applicant was assigned for duty as a scout with the 4th Squadron, 63rd Armored Cavalry Regiment, Fort Riley, Kansas.

7.  On 2 November 1980, the applicant was discharged for the purpose of reenlistment.  On 3 November 1980, he reenlisted for 3 years.

8.  On 18 February 1983, the applicant’s commander initiated a request for the applicant’s elimination pursuant to Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The commander cited, as justification for his recommendation, the applicant’s pattern of misconduct, consisting of five nonjudicial punishments (imposed for three incidents of failure to repair, one use of disrespectful language to a superior noncommissioned officer, and one failure to obey a lawful order), a letter of reprimand, two counseling statements, a bar to reenlistment, and a vacation of a suspension of reduction in grade.

9.  On 6 May 1983, the applicant was notified that he was being processed for separation, prior to his normal expiration of his term of service (ETS), because of a pattern of misconduct.  On 13 May 1983, the applicant acknowledged receipt of the notification and waived his various rights, including his right to present his case to a board of officers.

10.  On 7 June 1983, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

11.  Accordingly, on 20 June 1983, the applicant was discharged under other than honorable conditions.  He had completed 6 years, 11 months and 27 days of creditable active service.

12.  Item 18 (Remarks) of the applicant’s DD Form 214 shows that his enlistment on 23 November 1976 was terminated on 2 November 1980 for the purpose of reenlistment.

13.  On 2 April 1986, this Board considered and denied the applicant’s request for an upgrade of his discharge under other than honorable conditions.

14.  On 10 January 2008, this Board administratively closed the applicant’s request for reconsideration of his discharge.

15.  The applicant’s wife has written two letters in his support, stating, in effect, that he is an expert in his trade and profession of construction.  He has had three jobs in 34 years consisting of more than 9 years in the United States Army, 10 years as a truck driver for General Concrete, and 14 years with Creative Construction Builders.  She provided nine photographs to show his skill and expertise in the construction trades.  The applicant has worked his entire life and has provided a home for his family and has taken care of everyone. He has seven children who are 12 to 33 years of age.  The applicant is ill and can no longer work.  He is disabled and unable to provide for his family.  This has left him devastated and destitute.  He finds it very difficult to accept the fact that he is not able to provide for his family and is confined to his home.  The applicant’s wife further states that he requires constant care and cannot be left alone.

16.  Three additional letters of support from friends and co-workers essentially state the same sentiments as are contained in the applicant’s wife’s letters.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

18.  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 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 the person would have been eligible for a discharge or release under conditions other than dishonorable at the time except for the intervening enlistment or reenlistment.”

DISCUSSION AND CONCLUSIONS:

1.  Counsel’s request for an upgrade of the applicant’s discharge, which was considered and denied by the Board in 1986, is not the issue brought to the Board by the applicant.

2.  Since the characterization of the applicant’s discharge was considered by the Board more than 1 year prior to counsel’s request for reconsideration, that issue is not a proper matter for this Board.  Therefore, the Board should not consider it.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  Eligibility for VA benefits does not fall within the purview of the United States Army.  The VA has a provision for recognizing periods of honorable service as complete and unconditional separations for the purpose of qualifying for veterans’ benefits.  The applicant should contact a local office of the VA to request further assistance.  The VA may consider his first period of service as qualifying for benefits.  In the event he is denied, he should request assistance for the proper appeals process within the VA.

6.  This Board does not grant relief by upgrading a characterization of service solely for the purpose of enabling the applicant to obtain VA benefits.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080006958



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