IN THE CASE OF:	  

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090014099 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge, reinstatement of his rank/grade, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his correct date of entry as 17 November 1966 instead of
20 March 1975.

2.  The applicant states that he entered the Army in November 1966 but his
DD Form 214 incorrectly listed his date of entry as 20 March 1975.  He adds that he would like to clear his name of any wrongdoing and would like to know if he is eligible for any benefits from the Department of Veterans Affairs (DVA).

3.  The applicant provides, in support of his request, a copy of his DD Form 214, dated 20 March 1975; a copy of a letter of appreciation, dated 29 September 1974; a copy of an undated letter to his former commander; and a copy of his immunization record.

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 17 November 1966.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Repairer).  He was honorably discharged on 26 April 1968 for the purpose of immediate reenlistment.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 1 year, 5 months, and 10 days of creditable active service during this period.

3.  The applicant's records further show he executed a 6-year reenlistment in the RA on 27 April 1968.  He was honorably discharged on 21 July 1971 for the purpose of immediate reenlistment.  The DD Form 214 he was issued shows he completed 3 years, 2 months, and 26 days of creditable active service during this period and had 1 year, 5 months, and 10 days of prior active service for a total of 4 years, 8 months, and 6 days of active service.

4.  The applicant's records also show he reenlisted in the RA for a period of 4 years on 22 July 1971.  He was honorably discharged on 19 March 1975.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 3 years, 7 months, and 28 days of creditable active service during this period and he had 4 years, 8 months, and 6 days of prior active service for a total of 8 years, 4 months, and 4 days of active service.

5.  The applicant’s records further show he executed a 4-year reenlistment on
20 March 1975.  He was assigned to the 704th Maintenance Battalion, Fort Carson, CO.

6.  On 27 February 1978, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period on or about 13 February 1978 through on or about 15 February 1978.  His punishment consisted of 5 days of extra duty and a forfeiture of $125.00, of which $25.00 was suspended.

7.  On 8 April 1978, the applicant departed his Fort Carson unit in an AWOL status and was subsequently dropped from the rolls (DFR) of the Army on 7 May 1978.  He surrendered to military authorities at Fort Ord, CA on 12 April 1993.


8.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted
DD Form 214that shows he was discharged on 12 May 1993 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of a court-martial with an under other than honorable conditions discharge.  This form also shows the following entries:

	a.  item 12a (Date Entered Active Duty (AD) This Period) shows "75  03  20";

	b.  item 12b (Separation Date This Period) shows "93  05  12";

	c.  item 12c (Net Active Service This Period) shows "03  01  029";

	d.  item 12d (Total Prior Active Service) shows "08  04  04"; and

	e.  item 29 (Dates of Time Lost During This Period) shows the entries "780213 - 780214" and "780408 - 930412."

9.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitation.

10.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that item 12 shows the record of service.  Extreme care is used when completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information.  A breakdown of entries in item 12 is as follows:

	a.  item 12a shows the beginning date of the continuous period of active duty for issuance of this DD Form 214 for which a DD Form 214 was not previously issued (emphasis added);

	b.  item 12b shows the Soldier’s transition date.  This date may not be the contractual date if the Soldier is separated early, voluntarily extends or is extended for make-up of lost time, or retained on active duty for the convenience of the government;

	c.  item 12c shows the amount of active service this period, computed by subtracting item 12a from 12b.  Lost time under Title 10, U.S. Code, section 972, and non-creditable time after the expiration of term of service (ETS), if any, are deducted and such time will be identified in item 18 (Remarks); and

	d.  Item 12d, obtained from previously issued DD Forms  214, shows the total amount of prior active military service less lost time, if any.  If not applicable, enter, "00  00  00."

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his date of entry should be corrected, his discharge should be upgraded, and his VA eligibility should be determined.

2.  With respect to his date of entry, the evidence of record shows that the applicant initially enlisted in the RA on 17 November 1966 and he was discharged on 26 April 1968.  He then reenlisted in the RA on 27 April 1968 and he was honorably discharged on 21 July 1971.  He again reenlisted in the RA on 
22 July 1971 and he was honorably discharged on 19 March 1975.  As required by applicable regulations at the time, he was issued a separate DD Form 214 that captured each period of active service.  He completed a total of 8 years, 4 months, and 4 days from the date of his initial entry in the Army on 17 November 1966 to his 19 March 1975 date of discharge for the purpose of his final reenlistment.

3.  The evidence of record also shows he reenlisted on 20 March 1975.  He served for 3 years, 1 month, and 29 days before he went AWOL and was ultimately discharged on 12 May 1993.  He completed 3 years, 1 month, and 29 days of creditable active service during the period covered by this DD Form 214.  Item 12a of his final DD Form 214 correctly reflects the entry
"75  03  20," the date he reenlisted; item 12b correctly reflects the entry "93  05  12," the date he was discharged; item 12c correctly reflects the entry "03  01  29" the total active service from the date he reenlisted to the date he was discharged (minus lost time); and item 12d reflects an entry of "08  04  04" which is the applicant's total prior active service.  When combining the applicant's net active service this period in item 12c to his total prior active service in item 12d, it equates to 11 years, 6 months, and 3 days of total creditable active service.

4.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Consolidation of two or more periods of service into one DD Form 214 was not authorized during the periods referenced.  The applicant’s DD Form 214 correctly reflects his record of service and contains no errors.  Therefore, there is no basis for granting the applicant's requested relief.

5.  With respect to his character of service, the applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 12 May 1993 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  The issuance of a discharge under the provisions of Army Regulation 635-200, chapter 10, requires the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary.  Further, the applicant’s discharge accurately reflects his overall record of service.

6.  With respect to his DVA benefits, the applicant is advised to contact the DVA regarding entitlement to any benefits as this is not within the purview of this 
board.  In any case, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20090014099



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ABCMR Record of Proceedings (cont)                                         AR20090014099



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