IN THE CASE OF:
BOARD DATE: 11 May 2010
DOCKET NUMBER: AR20090017533
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 that his service between 3 May 1989 and 4 May 1995 that is characterized as dishonorable be characterized as honorable.
2. The applicant states that his conduct was not dishonorable during the above period of time. He states the Department of Veterans Affairs (VA) has determined his service is honorable for its purposes.
3. The applicant provides no additional documents to substantiate his request.
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 applicants 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 applicants 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 Regular Army on 3 May 1989 and he reenlisted on 5 September 1994.
3. On 7 June 2000 a general court-martial found the applicant guilty of soliciting or advising another individual to commit carnal knowledge with a nine year old child on or about 27 November 1999.
4. The U.S. Army Court of Criminal Appeals finally affirmed the above portion of the findings and the dishonorable discharge was ordered executed.
5. The applicant was issued a dishonorable discharge on 1 February 2006. Item 18 (Remarks) of his DD Form 214 contains, in part, the entry, "CONTINUOUS HONRABLE ACTIVE SERVICE: 19890503-20000310/IMMEDIATE REENLISTMENTS THIS PERIOD - 19890503-19940905."
6. Army Regulation 635-5 serves as the authority for the preparation and issuance of the DD Form 214. It provides, in pertinent part, that for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter in item 18, 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 states that his conduct was not dishonorable between 3 May 1989 and 4 May 1995 and that the VA has determined his service is honorable for its purposes.
2. The applicant's DD Form 214, Item 18, already shows he had continuous honorable active service from "1989503-2000310," which entry is incorrect by over 4 years. The entry should have read from "19890503-19940904." Item 18 then shows his immediate reenlistment from "19890503-19940905," which entry is incorrect by 1 day. The entry should have read from "19890503-19940904." However, it is Board policy not correct a record to make an applicant's records worse without the applicant requesting such a correction.
3. Furthermore, there is no known provision in law or regulation for the Army to otherwise characterize a portion of the service of an individual who has received a punitive discharge as a result of a court-martial conviction.
4. The fact that the VA has in its discretion made some decision based on the policies of that agency it is not sufficient for changing his characterization of service on his DD Form 214.
5. The applicant's request should be denied.
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) AR20090017533
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ABCMR Record of Proceedings (cont) AR20090017533
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