BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090009836 


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 upgrade of his under other than honorable conditions discharge to an honorable or a general, under honorable conditions discharge.  He also requests a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 8 February 1977 through 28 October 1979 based on the Honorable Discharge Certificate he was issued on 28 October 1979.

2.  The applicant states, in effect, that his record of promotions show he was a good Soldier, his conduct and efficiency ratings were excellent, and he had prior honorable service.

   a.  The applicant provides a summary of his achievements during his military service that include his promotion to the rank/grade of specialist four (SP4)/E-4, graduating from the Basic Noncommissioned Officer Course (BNCOC), completing two foreign service tours, and his honorable discharge on 28 October 1979 for the purpose of his immediate reenlistment on 29 October 1979.

	b.  He states he reenlisted in Germany to return to Fort Hood, TX, to be with a woman whom he fell in love with.  He adds that his unit was scheduled to rotate to Germany within a few months, and his personal problems impaired his ability to serve.

   c.  He states that he went absent without leave (AWOL) on three occasions and when he returned to military control on the last occasion, charges were preferred against him.  He adds an Army officer informed him, along with a group of other Soldiers, that he could request a discharge, but the discharge was not properly explained to him.

   d.  He states he is now 50 years of age and he has been married for 28 years to the woman he met in Texas.  He also states that he comes from a family whose members have served honorably in the Armed Forces during World War II and in Vietnam.  He adds that he obtained his General Equivalency Diploma (GED) and he has been employed since he left the service.

   e.  The applicant concludes by stating his discharge document indicates he was a poor Soldier for the entire time he was in the U.S. Army and it does not accurately reflect his honorable service during the period of his initial enlistment.

3.  The applicant provides a two-page self-authored letter and copies of a letter of commendation, his BNCOC diploma, discharge documents, Department of Veterans Affairs (VA) Certificate of Eligibility, and an identification card.

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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 3 February 1977.  He was discharged from the USAR DEP on 7 February 1977 and he enlisted in the Regular Army (RA) for a period of 3 years on 8 February 1977.  Upon completion of training, he was awarded military occupational specialty (MOS) 12B (Combat Engineer).  

3.  The applicant was honorably discharged on 28 October 1979 for the purpose of immediate reenlistment.  On 29 October 1979 he reenlisted for a period of
4 years.



4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  Item 5 (Oversea Service) that he served in Germany from 25 January through 21 July 1978 and from 23 January 1979 through 5 February 1980; and
   
   b.  Item 21 (Time Lost) that he was AWOL for 5 days from 17 April through
21 April 1980, AWOL for 25 days from 2 May through 26 May 1980, AWOL and in a deserter status for 209 days from 3 July 1980 through 27 January 1981, and AWOL for 95 days from 12 February through 17 May 1981.

5.  A DD Form 458 (Charge Sheet), dated 20 May 1981, shows that the Commander, Company A, U.S. Army Personnel Control Facility, Fort Dix, NJ, preferred charges against the applicant for three specifications of being AWOL from 3 July 1980 to 14 January 1981, from 21 January to 28 January 1981, and from 12 February to 18 May 1981.

6.  On 22 May 1981, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subject to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, that he may be deprived of his rights and benefits as a veteran under both Federal and state law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge, and the document indicates that statements in his own behalf were submitted with his request.

	a.  The applicant's request for discharge shows that a captain serving in the Judge Advocate General’s Corps certified with his signature he had advised the applicant of the possible effects of an under other than honorable conditions discharge and of the procedures and rights available to him, and that the applicant personally made the choices indicated in his request for discharge.

   b.  The applicant's statement shows, in pertinent part, that he went AWOL in May 1980 because his wife was very ill and in the hospital, and his request for leave was denied.

   c.  The immediate commander and intermediate commander recommended approval of the applicant's request for discharge and that an Under Other Than Honorable Conditions Discharge Certificate be issued.

7.  On 5 June 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The commander also directed the applicant be reduced to the lowest enlisted grade and furnished an Under Other Than Honorable Conditions Discharge Certificate.

8.  The applicant's DD Form 214 shows he entered active duty this period on
8 February 1977 and he was discharged on 20 June 1981 in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, and his service characterized as under other than honorable conditions.  At the time he had completed 3 years, 5 months, and
13 days of net active service and 5 days of total prior inactive service.

   a.  Item 18 (Remarks), in pertinent part, shows he had continuous active service from 8 February 1977 to 28 October 1979.
   
   b.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 17 April to 21 April 1980, from 2 May to 26 May 1980, from 3 July 1980 to 27 January 1981, and from 12 February to 17 May 1981.

9.  In 1986, the applicant submitted two DD Forms 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting upgrade of his under other than honorable conditions discharge.  On 25 September 1986, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

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

   a.  A letter of commendation, dated 6 December 1978, issued by the Commander, Company D, 17th Engineer Battalion, 2nd Armored Division, Fort Hood, TX, to the applicant for his initiative and hard work in preparing the Arms Room and the score received during the Annual General Inspection.

	b.  A diploma that shows the applicant completed BNCOC for Combat Arms MOS 12B3O (Engineer) on 5 October 1979.

   c.  His DD Form 256A (Honorable Discharge Certificate) that documents the applicant's honorable service from 8 February 1977 through 28 October 1979.

   d.  His VA Certificate of Eligibility for loan guaranty benefits, issued on
5 December 2008, and Oklahoma City VA Medical Center Identification Card.

11.  The Manual for Courts-Martial (MCM), Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

12.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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.

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 635-5 (Personnel Separations - Separation Documents), published on 15 August 1979 with an effective date of 1 October 1979 and in effect at the time of the applicant's discharge for his immediate reenlistment on 29 October 1979, prescribed the separation documents that must be prepared for individuals on retirement, discharge, or release from active military service.  Paragraph 1-4 (DD Form 214) provided that a DD Form 214 will be prepared for all personnel at time of retirement, discharge, or release from the Active Army.  Paragraph 1-4b(5) states that the DD Form 214 will not be prepared for enlisted members discharged for immediate reenlistment in the RA.

16.  Army Regulation 635-5, in effect at the time, stated to use the remarks section for entries required by HQDA for which a separate item was not available on the form and for completing entries that were too long for their blocks. It 
further stated that for item 18, enter a list of enlistment periods for which a DD Form 214 was not issued under the provisions of paragraph 1-4b(5). Example: Immediate reenlistments this period: 761210–791001; 791002–821001.

17.  Army Regulation 635-5, currently in effect, states that for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” (specify dates). However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except
“Honorable,” enter “Continuous Honorable Active Service From” (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment).  Then, enter the specific periods of reenlistments as
prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge or a general under honorable conditions discharge because he had an outstanding record of service prior to his reenlistment, his personal problems impaired his ability to serve, and the discharge he requested was not properly explained to him.  He also contends that a DD Form 214 should be issued for his period of honorable active duty service from 8 February 1977 through 28 October 1979.

2.  The applicant's contentions were carefully considered.  It is noted that the applicant's honorable service from 8 February 1977 through 28 October 1979 is documented in his military records and by his 28 October 1979 Honorable Discharge Certificate.  In addition, Army Regulation 635-5, in effect at the time of the applicant's discharge for his immediate reenlistment, ended the requirement to prepare the DD Form 214 for enlisted members discharged for immediate reenlistment in the RA.  Therefore, the applicant is not entitled to a
DD Form 214 for the period 8 February 1977 through 28 October 1979 for the purpose of documenting that honorable period of Federal service.

3.  However, the current version of Army Regulation 635-5 states that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter “Continuous Honorable Active Service From” (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment).  

Therefore, as a matter of equity, it would be appropriate to correct item 18 of his DD Form 214 to show his period of honorable service.

4.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by
court-martial was voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The offenses that led to the discharge outweigh his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.

5.  The applicant's record of service prior to the offenses for which he requested discharge in lieu of trial by court-martial is noteworthy; however, it is insufficient as the sole basis for upgrading his discharge.

6.  The applicant's post-service conduct and personal commitment since his discharge were also carefully considered.  The applicant's good post-service conduct and achievements are commendable, but is not so meritorious as to warrant an upgrade of his discharge.

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

8.  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 Depart of the Army records of the individual concerned be corrected by:

	a.  deleting from item 18 of his DD form 214 the entry "IMMEDIATE REENLISTMENT THIS PERIOD: 770208 TO 791028;" and

	b.  adding to item 18 of his DD form 214 the entry " CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770208 UNTIL 791028."

2.  The Board further determined that the evidence present is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to an honorable or a general, under honorable conditions discharge and issuing him a separate DD Form 214 for his period of honorable active service.



      ___________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)                                         AR20090009836



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ABCMR Record of Proceedings (cont)                                         AR20090009836



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