IN THE CASE OF:	

		BOARD DATE:	  01 June 2010

		DOCKET NUMBER:  AR20090020391 


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, an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).  

2.  The applicant states he was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), effective 22 August 2003, which shows he had continuous honorable service from 7 August 1979 through 30 March 1988; however, he was not separated until 8 December 1989, and he would like it corrected to show all of his service was honorable. 

3.  The applicant provides the following in support of his application:

* DD Form 214, effective 8 December 1989
* DD Form 215, dated 22 August 2003
* City of Tauten, Massachusetts, Veterans Service Department and Information Center letter, dated 6 November 2009
* The Commonwealth of Massachusetts, Department of Veterans' Services letter, dated 19 October 2009
* Memorandum from the Review Boards Agency, St. Louis, Missouri, Support Division, dated 22 August 2003



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 enlisted in the Regular Army (RA) on     7 August 1979.  He was trained in and awarded military occupational specialty (MOS) 76D (Materiel Supply Specialist).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments and Reductions), that he was advanced to the rank/grade of sergeant (SGT)/E-5 on 1 June 1986, and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to private (PV1)/E-1 on 7 December 1989.  Item 9 (Awards, Decorations & Campaigns) lists the following awards:

* Army Service Ribbon
* Overseas Service Ribbon
* Army Good Conduct Medal (2nd Award)
* Army Achievement Medal (2nd Award) 
* Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  The applicant's record documents no acts of valor or significant achievement.  His disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the offenses indicated:  5 August 1988, for willfully disobeying a lawful order; and 8 May 1989, for failing to go to his appointed place of duty at the time prescribed.

5.  The applicant's record also includes a letter of reprimand he received on 
25 August 1988 and a bar to reenlistment imposed on 1 December 1988.

6.  The applicant's record does not contain a separation packet with the facts and circumstances surrounding his discharge processing.  It does contain a DD Form 214 that shows he was separated under the provisions paragraph 14-12c, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of misconduct (commission of a serious offense) on 8 December 1989.  It also shows he received a UOTHC discharge and had completed 10 years, 4 months, and 2 days of active military service. 

7.  The record gives no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

8.  On 30 June 2003, the applicant requested his record be corrected to show honorable service for each immediate reenlistment period between 7 August 1979 and 8 December 1989.   

9.  On 22 August 2003, the applicant was informed by the DA, Review Boards Agency, Support Division, St Louis, Missouri, that his records were administratively corrected as requested and provided him a copy of the DD Form 215 for his records.  The DD Form 215 amended item 18 (Remarks) of his original 8 December 1989 DD Form 214 by adding the entry "CONTINUOUS HONORABLE ACTIVE SERVICE 790807-880303//NOTHING FOLLOWS.”

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 6 June 2005, provides the current policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The regulation states, in pertinent part, that a discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  

11.  The same regulation stipulates, in paragraph 3-7a, that an HD 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.  Paragraph 3-7b stipulates a general, under honorable conditions 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.  

12.  Army Regulation 635-5 (Separation Documents) 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.  Chapter 2 contains item-by-item instructions for the DD Form 214.  The instructions for item 18 state 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's request to correct his record to show all of his active duty service between 31 March 1988 and 8 December 1989 was honorable has been carefully considered.  However, the evidence is not sufficient to support this claim.

2.  The applicant's record is void of a separation packet containing the facts and circumstances surrounding his separation processing.  However, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's final discharge.  It confirms he was separated for misconduct and received a UOTHC discharge.  Absent evidence to the contrary, this document carries with it a presumption of government regularity in the discharge process. 

3.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on two separate occasions, his receipt of a letter of reprimand, and a bar to reenlistment.   

4.  Given the applicant's disciplinary history during his last enlistment, his discharge accurately reflected his undistinguished record of service during the period.  Therefore, his record did not support the issue of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade now.  

5.  By regulation, for Soldiers separated with any characterization of service except honorable, item 18 of the DD form 214 will document honorable service prior to commencement of the last enlistment.  In this case, the DD Form 215 issued to the applicant properly documents his honorable service for enlistments prior to his last enlistment, which ended with a UOTHC discharge.  Absent an action to upgrade his final characterization/discharge, it would not be appropriate to show all of his service through 8 December 1989 was honorable. 

6.  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 

________  ________  ________  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)                                         AR20090020391



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ABCMR Record of Proceedings (cont)                                         AR20090020391


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