IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080009196 


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, a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period of his active duty service.

2.  The applicant states, in effect, he was never issued a separation document for his active duty service because he was confined by civil authorities at the time of his separation.  He also states that he is a veteran, but unable to receive benefits that he is entitled to because he was not issued a separation document.

3.  The applicant provides copies of his DD Form 214, with an effective date of
7 December 1982; Headquarters, Military Entrance Processing Station, Maxwell Air Force Base - Gunter Annex, Alabama, Orders 194-15, dated 1 October 1992; Headquarters, U.S. Army Reserve Command, Fort McPherson, Georgia, Orders 011-022, dated 15 October 1992; Headquarters, U.S. Army Reserve Command, Deputy Chief of Staff, G-1, Fort McPherson, Georgia, memorandum, dated
21 June 2004; Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, Georgia, Orders 005-0037, dated 5 January 1996; 
Headquarters, 3rd Infantry Division (Mechanized), Office of the Staff Judge Advocate, Fort Stewart, Georgia, memorandum, dated 7 March 2000, subject: Request for Orders; Headquarters and Headquarters Company, 3rd Infantry Division, Fort Stewart, Georgia, memorandum, dated 20 June 2000, subject:  Notification of Separation Under the Provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-5, Conviction by Civil Court; Headquarters, U.S. Army Trial Defense Service, Fort Stewart Field Office, Fort Stewart, Georgia, memorandum, dated 27 July 2000, subject:  Conditional Waiver of Separation Board, [Applicant’s Rank, Name, and Social Security Number], Headquarters and Headquarters Company, 3rd Infantry Division, Fort Stewart, Georgia  31314; and 63 Joint Uniform Military Pay System (JUMPS), Leave and Earnings Statements (LES), Online Inquiry System, Personal Data records covering the period
1 October 1992 through 31 December 1997.

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 contain a DD Form 4-Series (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 16 June 1982.  This document shows that the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 6 years.  He was ordered to active duty for training (ADT) on 12 August 1992, completed basic combat training and advanced individual training, and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  The applicant’s MOS was redesignated MOS 92Y (Unit Supply Specialist).

3.  The applicant's military service records contain a DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes), dated
12 February 1993.  This DA Form 1506 documents the applicants continuous military service in the USAR (i.e., both active and inactive) from 16 June 1982 through 30 September 1992.

4.  The applicant's military service records contain a DD Form 4-Series (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 1 October 1992.  This document shows that the applicant enlisted in the Regular Army (RA), entered active duty for a period of 3 years, and his expiration term of service (ETS) was established as 30 September 1995:

     a.  The applicant's military service records contain a DA Form 1695 (Oath of Extension of Enlistment), dated 28 September 1993.  This document shows that the applicant extended his 3-year enlistment of 1 October 1992 in the RA to a period of 3 years and 4 months to meet the service remaining requirement to return to the continental United States.  This extension of the applicant’s enlistment established his ETS as 30 January 1996.

     b.  The applicant's military service records contain a DA Form 1695 (Oath of Extension of Enlistment), dated 8 August 1995.  This document shows that the applicant extended his 3-year and 4-month enlistment of 1 October 1992 in the RA to a period of 3 years and 6 months to meet the service remaining requirement for attending the Primary Leadership Development Course.  This extension of the applicant’s enlistment established his ETS as 30 March 1996.

5.  The applicant's military service records contain a DD Form 4-Series (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 31 December 1995.  This document shows that the applicant reenlisted in the RA to remain on active duty for a period of 4 years.  This reenlistment established his ETS as 30 December 1999.

6.  The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) shows he served overseas in U.S. Army Europe (USAREUR) in the Federal Republic of Germany for a period of 24 months from 18 October 1992 through 13 October 1994, which equates to 1 year, 11 months, and 26 days foreign service.  Item 18 (Appointments and Reductions) shows he was promoted to the rank of Sergeant/pay grade E-5, effective 1 January 1996.

7.  The applicant's military service records contain a DA Form 2166-7 (NCO Evaluation Report) covering the period December 1996 through November 1997 that shows the applicant was assigned to Headquarters and Headquarters Detachment, 26th Forward Support Battalion, 3rd Infantry Division (Mechanized), Fort Stewart, Georgia.  This document also shows that the applicant’s rater, senior rater, and reviewer completed a relief for cause NCO Evaluation Report relieving the applicant of duty as Supply Sergeant, Duty MOS 92Y2O.  This document further shows that the applicant was notified of the relief for cause.

8.  The applicant's military service records are absent a complete copy of his administrative separation packet.  His records are also absent a DD Form 214 covering the applicant’s period of active duty service from 1 October 1992 through his contracted ETS date of 30 December 1999.

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

     a.  A DD Form 214 that shows the applicant was ordered to ADT on              12 August 1982 and was honorably released from ADT on 7 December 1982.  At the time, he was credited with completing 0 years, 3 months, and 26 days of net active service this period.

     b.  Headquarters, Military Entrance Processing Station, Maxwell Air Force Base - Gunter Annex, Alabama, Orders 194-15, dated 1 October 1992, that show the applicant enlisted in the RA to enter active duty for a period of 3 years on
1 October 1992.

     c.  Headquarters, U.S. Army Reserve Command, Fort McPherson, Georgia, Orders 011-022, dated 15 October 1992, that show the applicant was discharged from the USAR, effective 30 September 1992, the date preceding his enlistment in the RA.

     d.  Headquarters, U.S. Army Reserve Command, Deputy Chief of Staff, G-1, Fort McPherson, Georgia, memorandum, dated 21 June 2004.  This document shows that the applicant was informed that, in accordance with Army regulatory guidance, a formal discharge certificate will not be issued to a Soldier discharged to enlist in the Active Army; that the order format authorized for use at the time of his discharge did not provide for entry of character of service; and the character of his service in 1992 is considered honorable.

     e.  Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, Georgia, Orders 005-0037, dated 5 January 1996, that show the applicant was scheduled for transition processing at the U.S. Army Separation Transition Point, Fort Stewart, Georgia, with a reporting date of 30 March 1996.

     f.  Headquarters, 3rd Infantry Division (Mechanized), Office of the Staff Judge Advocate, Fort Stewart, Georgia, memorandum, dated 7 March 2000, subject: Request for Orders.  This document shows that the captain serving as Officer In Charge, Consolidated Legal Center, requested attachment of the applicant to Headquarters and Headquarters Company, 3rd Infantry Division (Mechanized), Fort Stewart, Georgia, effective 8 March 200, for the purpose of administrative separation.

     g.  Headquarters and Headquarters Company, 3rd Infantry Division, Fort Stewart, Georgia, memorandum, dated 20 June 2000, subject:  Notification of Separation Under the Provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-5, Conviction by Civil Court.  This document shows, in pertinent part, that the company commander notified the applicant he was initiating action to effect the applicant’s separation under the provisions of Army Regulation
635-200, Chapter 14, paragraph 14-5 (Conviction by Civil Court), for misconduct based on conviction for aggravated assault with intent to rape.  The company commander also advised the applicant of his rights.

     h.  Headquarters, U.S. Army Trial Defense Service, Fort Stewart Field Office, Fort Stewart, Georgia, memorandum, dated 27 July 2000, subject:  Conditional Waiver of Separation Board, [Applicant’s Rank, Name, and Social Security Number], Headquarters and Headquarters Company, 3rd Infantry Division, Fort Stewart, Georgia  31314.  This document shows that the applicant consulted with legal counsel.  This document also shows that the applicant acknowledged with his signature he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  This document further shows the applicant waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than General, Under Honorable Conditions.  The applicant also indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.  The applicant’s counsel, a commissioned officer serving in the Judge Advocate General Corps, also signed this document.

     i.  63 JUMPS, LES, Online Inquiry System, Personal Data records covering the period 1 October 1992 through 31 December 1997, that document the applicant’s pay record during this period.  The LES for the period 1- 30 June 1997, in pertinent part, shows that the applicant’s status was changed to “Confined” on 5 March 1997 and his military pay was terminated in June 1997.

10.  During the processing of the applicant’s case, an ABCMR official contacted the 3rd Infantry Division (Mechanized), Office of the Staff Judge Advocate, Fort Stewart, Georgia and U.S. Army Separation Transition Point, Fort Stewart, Georgia, in an effort to obtain a copy of the applicant’s administrative separation packet.  The inquiries revealed that neither office has a copy of the completed administrative separation action.  In addition, the exact date that the applicant should have been separated could not be confirmed.

11.  During the processing of the applicant’s case, an ABCMR official contacted the U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Service Division, Clarksburg, West Virginia, in an effort to obtain information pertaining to the applicant’s criminal history.  This inquiry resulted in a criminal history response that shows, in pertinent part, the applicant was involved in an incident on 1 March 1997; arrested on 5 March 1997; charged with rape and aggravated assault with intent to rape; convicted on the charge of aggravated assault with intent to rape on 19 December 1997; sentenced to
5 years confinement and 5 years probation; and motion to appeal was closed.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Chapter 14, Section II (Conviction by Civil Court), paragraph 14-5 (Conditions which subject Soldier to discharge and reduction in grade), in pertinent part, provides that a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present:  (1) a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial, 1984, as amended; or
(2) the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation.  Paragraph 14-3 (Characterization of service or description of separation) provides that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

15.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

16.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policy and procedures for career management of Army personnel.  Chapter 8 (Reductions in Grade), Section I (Authority and Reasons for Reduction), paragraph 8-3 (Misconduct), in pertinent part, provides that a Soldier convicted by a civil court (including adjudication as a juvenile offender by a civil court) will be reduced to the lowest enlisted grade, E-1, when sentence includes death or confinement for 1 year or more which is not suspended (emphasis added).

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  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 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).  Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214.

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  
It identifies the SPD code of “JKB” as the appropriate code to assign RA enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, Section II, for misconduct based upon conviction by civil court.  The SPD/Reentry (RE) Code Cross Reference Table provides for the assignment of RE Code “3” for members separated with this SPD code.

19.  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 he should be issued a DD Form 214 because he was confined by civil authorities at the time of his separation and was never issued a discharge document.

2.  The evidence of record shows that the DA Form 1506, dated 12 February 1993, that is filed in the applicant’s military service records, documents his military service while serving as a member of the USAR from 16 June 1982 through 30 September 1992 and that the character of his service during this period was considered honorable.

3.  The evidence of record shows that the applicant enlisted in the RA and entered active duty on 1 October 1992; his ETS date was 30 December 1999; and he served continuously on active duty, without a break in service, through
4 March 1997.  The evidence of record also shows that the applicant was confined by civil authorities on 5 March 1997 and that he was released on
4 March 2002.

4.  The evidence of record shows that action was taken to attach the applicant to Headquarters and Headquarters Company, 3rd Infantry Division (Mechanized), Fort Stewart, Georgia, effective 8 March 2000, for the purpose of administrative separation.  The evidence of record also shows the Commander, Headquarters and Headquarters Company, 3rd Infantry Division (Mechanized), Fort Stewart, Georgia, notified the applicant he was initiating action to effect the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, for conviction by civil court and recommending the applicant receive a general discharge under honorable conditions.  The evidence of record further shows, on 27 July 2000, the applicant waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than General, Under Honorable Conditions.

5.  The applicant’s military service records are absent a copy of an endorsement or memorandum showing that the separation authority approved the applicant’s separation.  In addition, the available evidence fails to show that the applicant was issued a DD Form 214, or any other document, separating him from active duty in the RA and/or discharging him from the U.S. Army.

6.  The evidence of record shows that Army Regulation 635-5 (Personnel Separations - Separation Documents) provides that a DD Form 214 must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.
7.  In view of all of the foregoing, and based on the fact the applicant waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than General Under Honorable Conditions, and given the presumption of administrative regularity, it would be appropriate to correct the applicant’s military service records to show that he was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, for misconduct based on conviction by civil court; given an SPD Code “JKB” and RE Code of “3”; and issued a general discharge under honorable conditions, effective 31 July 2000.  In addition, as a result of this action, it would be appropriate to correct the applicant’s military service records to show he had time lost from 5 March 1997 through 31 July 2000 and that he was reduced to the rank of private/pay grade
E-1, effective 31 July 2000.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period from 1 October 1992 through 31July 2000 to show that he was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, for misconduct based on conviction by civil court with a general discharge under honorable conditions and assigned an SPD Code of “JKB” and a RE Code of “3.”






2.  In addition, as a result of this action, it would be appropriate to correct the applicant’s military service records to show he had time lost from 5 March 1997 through 31 July 2000 and that he was reduced to the rank of private/pay grade
E-1, effective 31 July 2000.




      _______ _   _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)                                         AR20080009196



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ABCMR Record of Proceedings (cont)                                         AR20080009196



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