IN THE CASE OF:	  

		BOARD DATE:	        07 APRIL 2009

		DOCKET NUMBER:  AR20080019779 


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, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued at the time of his discharge on 
18 April 1991 be broken out into two separate DD Forms 214 as follows:

	a.  one DD Form 214 for the period 18 April 1977 to 9 December 1987 showing that his characterization of service for this period of service was honorable; and

	b.  another DD Form 214 for the period 10 December 1987 to 18 April 1991 showing that his characterization of service for this period of service was under other than honorable conditions.

2.  The applicant also requests that the United States Army convey to the Department of Veterans Affairs (DVA) that his service from 16 July 1973 to 
9 December 1987 was honorable and that his service from 10 December 1987 to 18 April 1991 was under other than honorable conditions.

3.  The applicant states that his DD Form 214 that was issued on 18 April 1991 does not correctly reflect his character of service, and that his active duty service from 18 April 1977 to 9 December 1987 should be honorable, and that his service from 10 December 1987 to 18 April 1991 should be under other than honorable conditions.  He also states that he is applying for DVA benefits, and that the DVA is determining whether he served his country dishonorably since 

they state that the military says his service was not "honorable."  Additionally, he states that he presently works as a contractor/instructor at Fort Huachuca, Arizona, and that the United States Army and his current contracting company have given him a second chance to prove his worth, which he is doing.  He also contends that he has opportunities for advancement which would benefit the United States Army, but that he will be hindered by his last DD Form 214 if it stays the same.

4.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) for the period 16 July 1973 to 17 April 1977; his DD Form 214 for the period 18 April 1977 to 18 April 1991; his Honorable Discharge Certificates that were issued on 17 April 1977, 28 July 1982, and 9 December 1987; orders, dated 8 September 1988, which awarded him the Good Conduct Medal (5th Award); two self-authored letters, dated 12 November 2008; a letter, dated
27 October 2008, from the DVA; and a VA Form 21-4138 (Statement in Support of Claim), dated 12 November 2008 with a two-page unsigned self-authored statement in support of this application.

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 records show that he enlisted in the Regular Army (RA) on 16 July 1973.  He completed initial entry training and was awarded military occupational specialty (MOS) 72B (Communications Center Specialist), and was subsequently awarded MOS 72E (Telecommunications Center Specialist).  On 18 April 1977, he reenlisted in the Regular Army for a period of
6 years and was issued a DD Form 214 and Honorable Discharge Certificate on 17 April 1977 in conjunction with his pending reenlistment which honorably discharged him on that date.  He again reenlisted in the Regular Army on 29 July 1982 for a period of 6 years and was furnished an Honorable Discharge 

Certificate the day prior to reenlisting, but was not issued a DD Form 214 at that time.  On 10 December 1987, he reenlisted in the Regular Army for a period of
6 years, and again he was issued an Honorable Discharge Certificate the day prior to reenlisting but was not issued a DD Form 214.  Item 18 (Remarks) of his DD Form 214 for the period ending 18 April 1991 contains the entry "IMMEDIATE REENLISTMENTS THIS PERIOD:  770418-820728; 820729-871209."

3.  On 23 February 1990, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for making and uttering 
10 checks totaling $1,020.25 between on or about 29 December 1988 and on or about 7 October 1989, and thereafter dishonorably failing to maintain sufficient funds for payment of such checks in full upon their presentation for payment.  His punishment consisted of forfeiture of $700.00 pay per month for 2 months and 
14 days of extra duty.
  
4.  On 18 April 1991, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge in Lieu of Trial by Court-Martial).  Prior to voluntarily requesting discharge in lieu of trial by court-martial, charges were preferred against the applicant for wrongfully charging about $20,000.00 in personal expenses on a charge card he applied for and received as part of an Army-wide charge card program, knowing that the charge card was to be used exclusively for expenses associated with military temporary duty, and by failing to make timely payment on his charges, thereby using his official position to receive unauthorized benefits for his private gain.  He was also charged with three counts of dishonorably failing to pay just debts and one count of wrongfully and unlawfully presenting the aforementioned charge card to various establishments with the intent to defraud and for the procurement of things of value, then knowing that he did not or would not have sufficient funds or credit for the payment of the said charges, such conduct being of a nature to bring discredit upon the armed forces.

5.  On 30 April 1993, the Army Discharge Review Board denied the applicant's petition to change the characterization of his discharge and the narrative reason for his discharge.

6.  The applicant provided a two-page unsigned self-authored statement in which he stated, in pertinent part, that the discharge he received was not a dishonorable, bad conduct, or undesirable discharge.  He also stated that he is asking the DVA to award him benefits that he is entitled to for serving his country honorably until his mistake and that he be considered a veteran.  


7.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  At the time of the applicant's first reenlistment in 1977, the regulation provided, in pertinent part, that a DD Form 214 would be prepared for each period of service, to include separations for immediate reenlistment.  However, effective 1 October 1979, this regulation was changed and provided that a DD Form 214 would not be prepared for enlisted members discharged for immediate reenlistment in the RA.  A break in service of more than 24 hours is required for a DD Form 214 to be issued.  

8.  Army Regulation 635-5, in effect since 1989, states that for block 18, for enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REELINSTMENTS THIS PERIOD:  specify dates."  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are separated with any characterization of service except "Honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first date of service for which a DD Form 214 was not issued) UNTIL (date before commencement of current enlistment).  Then enter the specific period of reenlistments as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 that was issued at the time of his discharge on 18 April 1991 should be broken out into two separate DD Form 214 for the period from 18 April 1977 to 9 December 1987 and from
10 December 1987 to 18 April 1991.

2.  The applicant also contends that the United States Army should convey to the DVA that his service from 16 July 1973 to 9 December 1987 was honorable and that his service from 10 December 1987 to 18 April 1991 was under other than honorable conditions.

3.  It is understandable that the applicant wishes to have his DD Form 214 that was issued on 18 April 1991 broken out to show that only his last enlistment was characterized as under other than honorable conditions.  However, this DD Forms 214 was prepared in accordance with the applicable regulations in effect at the time and, as a result, there is no basis for granting the applicant's requested relief.

4.  However, the applicant is entitled to correction of the entry in block 18 of his DD Form 214 for the period ending 18 April 1991.  During the applicant's period of active service from 18 April 1977 to 18 April 1991 he had a period of honorable 

service from 18 April 1977 until 9 December 1987, which is not reflected on his DD Form 214.  Therefore, block 18 of his DD Form 214 should be corrected to show the entry "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770418 UNTIL 871209."  "IMMEDIATE REENLISTMENTS THIS PERIOD:  770418-820728; 820729-871209; 871210-910418."

5.  The applicant's contention that the discharge he received was not a dishonorable, bad conduct, or undesirable discharge was noted.  However, his discharge under other than honorable conditions is today's equivalent to what in the past was called an undesirable discharge.  

6.  The fact that the applicant is requesting DVA benefits was noted.  However, the DVA administers its benefit programs under its own regulations and policies, and granting DVA benefits is not within the purview of the ABCMR.  The fact that the applicant is seeking DVA benefits does not constitute an error or injustice in this case.

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ____X____  ____X____  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from block 18 of the applicant's DD Form 214 for the period ending 18 April 1991 the entry "IMMEDIATE REENLISTMENTS THIS PERIOD:  770418-820728; 820729-871209"; and


	b.  adding to block 18 of the applicant's DD Form 214 for the period ending
18 April 1991 the entry "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770418 UNTIL 871209."  "IMMEDIATE REENLISTMENTS THIS PERIOD:  770418-820728; 820729-871209; 871210-910418."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the request relief.  As a result, the Board recommends denial of so much of the application that pertains to issuing him separate DD Forms 214 to show his honorable service from 18 April 1977 to 9 December 1987 and to show his service under other than honorable conditions from 10 December 1987 to 18 April 1991.



      _______XXX__________________
               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)                                         AR20080019779



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ABCMR Record of Proceedings (cont)                                         AR20080019779



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