IN THE CASE OF:	  

		BOARD DATE:	  25 June 2009

		DOCKET NUMBER:  AR20090003224 


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 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show his service was characterized as fully “honorable.”  

2.  The applicant provides no statement in support of his application.  

3.  The applicant provides a City of Somersworth, New Hampshire letter, dated 10 December 2008, in support of his 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 record shows that he was inducted into the Army and entered active duty on 11 June 1966.  He trained in and was awarded military occupational specialty (MOS) 95B (Military Police) and he attained the rank of specialist four (SP4), which is the highest rank he held while serving on active duty, on 12 January 1967.  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record ) shows, in item 
31 (Foreign Service), that he served in Germany from 25 May 1966 through 
21 December 1967.  Item 38 (Record of Assignments) shows that he received “excellent” conduct and efficiency ratings at all but one of his active duty assignments, and that in the one case he received less than an "excellent” conduct rating he received a “good” rating.  Item 42 (Remarks) contains an entry confirming the applicant was eligible for reenlistment and received a reenlistment (RE) code of RE-1.  

4.  The applicant’s record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), which shows he accepted non-judicial punishment (NJP) on 28 July 1966, for being absent from his unit without proper authority on 12 July 1966.  His punishment for this offense was a forfeiture of $30.00.  

5.  The applicant’s Official Military Personnel File (OMPF) is void of a separation packet or any documentation from his commander indicating his service would be characterized as general, under honorable conditions.  

6.  The applicant’s OMPF contains Headquarters, 15th Military Police Brigade General Orders Number 35, dated 24 November 1967, which awarded the applicant the Army Good Conduct Medal (AGCM) for his qualifying period of honorable active duty service from 11 January 1966 through 10 January 1968.  

7.  On 5 January 1968, the applicant was released from active duty (REFRAD), in the rank of SP4, after completing 1 year, 11 months, and 25 days of active military service.  The DD Form 214 he was issued at the time shows he was separated under the provisions of Section VII, Chapter 5, Army Regulation 635-200, by reason of Overseas Returnee and that he was assigned a Separation Program Number (SPN) of 411 and an RE-1 code.  Item 13a (Character of Service) contains the entry “Honorable Conditions.”   


8.  Army Regulation 635-200 contains the Army’s enlisted separation policy.  Chapter 5 contains guidance on separation for the convenience of the government and Section VII, in effect at the time, provided guidance on the separation of Overseas Returnees.  It stated, in pertinent part, that members inducted into the Army would be separated from active duty and transferred to the Army Reserve, as appropriate, upon arrival in the United States if they completed 21 or more months of active duty on their current tour.  

9.  Paragraph 1-9 of the same regulation contained guidance on characterizing a member’s service.  It stated, in pertinent part, that a member’s service would be characterized as honorable if he had conduct ratings of at least “good,” had efficiency ratings of at least “fair,” and had not been convicted by a general court-martial or by more than one special court-martial.  

10.  Army Regulation 635-5 prescribes 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 establishes standardized policy for preparing and distributing the DD Form 214.  The instructions for item 13a contained in the version of the regulation in effect at the time of the applicant’s REFRAD stated to enter one of the following:  “Honorable,” ”Under Honorable Conditions,” “Under Conditions Other Than Honorable,” or “Dishonorable.”  The regulation did not provide for the entering “Honorable Conditions” in item 13a.  

DISCUSSION AND CONCLUSIONS:

1.  The governing regulation in effect at the time of the applicant’s REFRAD provided no provisions for an entry of “Honorable Conditions” in item 13a of the DD Form 214.  The proper item 13a entry for a fully honorable characterization of service was “Honorable” and the proper entry for a service characterization of general, under honorable conditions was “Under Honorable Conditions.”  

2.  The evidence of record is void of any indication that a determination was made by the appropriate authority that the applicant’s service would be characterized as anything other than fully honorable.  

3.  Further, notwithstanding the NJP action of 28 July 1966, his record confirms he met all the requirements necessary to receive an “Honorable” characterization of service at the time of his REFRAD, as evidenced by the conduct and efficiency ratings in item 38 of his DA Form 20 and absence of any court-martial convictions during his active duty tenure.  


4.  In view of the facts of this case, it appears clear that the erroneous entry in item 13a of his DD Form 214 was the result of an administrative error made during the applicant’s separation processing.  Therefore, it would be appropriate to amend his DD Form 214 by deleting the current entry in item 13a and replacing it with the entry “Honorable.”

BOARD VOTE:

___X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 amending his DD Form 214 by deleting the current entry in item 13a and replacing it with the entry “Honorable” and by providing him a correction to his DD Form 214 that contains this change. 




      _______ _   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)                                         AR20090003224



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ABCMR Record of Proceedings (cont)                                         AR20090003224



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