IN THE CASE OF:	  

		BOARD DATE:	       25 AUGUST 2009

		DOCKET NUMBER:  AR20090011498 


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 discharge.  He also requests correction of his discharge document to show all of his military education.

2.  The applicant states, in effect, he believes an upgrade of his discharge is justified because he has never been arrested, he has proven to be an upstanding citizen in society, and he has a wonderful family of four that he has supported by working in the offshore industry for the past 14 years.

   a.  He states he would like to have his discharge upgraded for reference purposes and future employment opportunities.

   b.  He adds he completed the Master Wheeled Driver Course at Fort Ord, CA, and the Advanced Leadership Development Course at Fort Sill, OK; however, they are not recorded on his discharge document.
   
3.  The applicant provides, in support of his application, a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 7 January 2009; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 20 May 1988.





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 entered active duty in the Regular Army (RA) on 19 October 1982 for a period of 3 years.  Upon completion of training, he was awarded military occupational specialty (MOS) 82C (Field Artillery Surveyor).

3.  The applicant was discharged on 17 February 1987 and he immediately reenlisted for a period of 6 years on 18 February 1987.  He completed the Positioning and Azimuth Determining System course and he was awarded MOS 13F (Fire Support Specialist) as his primary MOS.

4.  The applicant’s military personnel records contain a DA Form 2-1 (Personnel Qualification Record).

	a.  Item 17 (Civilian Education and Military Schools), in pertinent part, shows he completed the 18-week One Station Unit Training (MOS 82C1O) Course at the U.S. Army Field Artillery School at Fort Sill in 1983; a 2-week Gama Goat Driver Course at Fort Ord in 1983; a 4-week Wheeled Vehicle Mechanic Course at Fort Ord in 1984; a 1-week Positioning and Azimuth Determining System Course at Fort Ord in 1985; a 5-week Fire Support (MOS 13F1O) Course at Fort Sill in 1986; and a 4-week Primary Leadership Development Course at Fort Bliss, TX in 1986.

   b.  Item 21 (Time Lost (Section 972, Title 10, USC [U.S. Code])) shows he was absent without leave (AWOL) for 2 days from 16 June through 17 June 1987 and AWOL for 104 days from 2 December 1987 through 14 March 1988.

5.  On 14 July 1987, the applicant received nonjudicial punishment under Article15, Uniform Code of Military Justice (UCMJ), for being AWOL.  His punishment consisted of reduction to the grade of private (E-2), forfeiture of $172.00 pay, 14 days of extra duty, and 14 days of restriction.
6.  A DD Form 458 (Charge Sheet), dated 21 March 1988, shows the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY, preferred charges against the applicant for being AWOL from 2 December 1987 to 15 March 1988.

7.  On 22 March 1988, the applicant 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 Veterans Administration (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; however, the document indicates that statements in his own behalf were not submitted with his request.  The immediate and intermediate commander recommended approval of the applicant’s request for discharge.

8.  On 29 March 1988, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  The commander also directed the applicant be reduced to the lowest enlisted grade and furnished a discharge certificate under other than honorable conditions.

9.  The applicant’s DD Form 214 shows he was discharged on 20 May 1988 in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of court-martial, and his service characterized as under other than honorable conditions.  At the time he had completed 5 years, 3 months, and 17 days of net active service and 6 months and 20 days of total prior inactive service.

   a.  Item 14 (Military Education) shows he completed the 18-week Field Artillery Course in 1983, a 4-week Wheeled Vehicle Course in June 1984, a 
4-week Primary Leadership Development Course in July 1986, a 2-week Gama Goat Driver Training Course in 1983, and a 1-week Positioning and Azimuth Determining System Course in 1985.

   
   b.  Item 18 (Remarks), in pertinent part, shows he had an immediate reenlistment from 19 October 1982 to 17 February 1987.
   
   c.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 16 June to 17 June 1987 and from 2 December 1987 to 14 March 1988.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  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), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  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 Enlisted Qualification Record, Officer Qualification Record, Personnel Qualification Record, Officer Record Brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

16.  Section II (Preparation of DD Form 214) contains item-by-item instructions for completing the DD Form 214.  The instructions for Item14 state to list in-service training courses by title, number of weeks, and year successfully completed during this period of service (e.g., medical, dental, electronics, supply, administration, personnel, or heavy equipment operations).  This information is to assist the member after separation in job placement and counseling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge for reference purposes and employment opportunities.  He also contends that item 14 of his DD Form 214 should be corrected to show all of his military education.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to show he completed the Master Wheeled Driver Course at Fort Ord, or the Advanced Leadership Development Course at Fort Sill.  Therefore, there is no basis for adding these two courses to the applicant’s DD Form 214.  The evidence of records also shows the applicant completed the 5-week Fire Support (MOS 13F1O) Course at Fort Sill in 1986 and this course is not recorded in item 14 of his DD Form 214.  Therefore, it would be appropriate to correct his DD Form 214 to show this in-service training course.
   
3.  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, administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  In addition, the character of the discharge is appropriate for the applicant's offense and commensurate with his overall record.  Therefore, considering all the facts of the case, the type of discharge and character of service directed were appropriate.


4.  The applicant's post-service work ethic and personal commitment to his family since his discharge were carefully considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  In addition, the ABCMR does not upgrade a former Soldier's discharge solely to enhance his or her future employability.

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 adding to item 14 of the applicant's DD Form 214 the entry "Fire Support Specialist Course, 5 Weeks (1986)."
 
2.  The Board further determined that the evidence presented 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 the Master Wheeled Vehicle Driver Course, Advanced Leadership Development Course, and upgrade of his discharge.



      ________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)                                         AR20090011498



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ABCMR Record of Proceedings (cont)                                         AR20090011498



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