IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100000416 


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 discharge under other than honorable conditions be upgraded to a general discharge.  He also requests that he be issued a separate DD Form 214 (Certificate of Release or Discharge from Active Duty) for his period of service that was characterized as honorable.

2.  The applicant states he needs an upgrade in order to receive benefits (payment of bills, food, employment and other necessities) from his local Department of Veterans Affairs (VA).

3.  The applicant provides copies of:

* a letter, dated 10 February 2004, from the Defiance County Veterans' Service Commission - Veterans' Affairs, Defiance, OH
* a Standard Form 180 (Request Pertaining to Military Records)
* a letter, dated 16 June 1997, from the Defiance County Veterans' Service Commission
* his DD Form 214 with a separation date of 21 June 1991
* his Army Discharge Review Board (ADRB) Application
* his ADRB Case Report and Directive and notification letter 
* his VA Form 21-526 (Veteran's Application for Compensation or Pension)


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 military personnel records show he enlisted in the Regular Army on 2 October 1986 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 71M (Chaplain Assistant).

3.  On 16 June 1987, the applicant was assigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 10th Cavalry at Fort Knox, KY.  He was attached to HHC, 194th Armored Brigade.

4.  HHC, 194th Armored Brigade awarded the applicant five Army Achievement Medals for:

* meritorious achievement - 7 April 1987 to 4 May 1987
* meritorious service - 7 May 1987 to 7 May 1988
* meritorious service - 26 January 1988 to 28 February 1989
* meritorious service/achievement - 1 July 1988 to 30 September 1988
* meritorious service - 27 March 1987 to 26 June 1989

5.  On 6 April 1989, the applicant immediately reenlisted for a period of 2 years.  There was no DD Form 214 issued covering his first period of service.

6.  On 26 June 1989, the applicant was assigned to Company A, U.S. Army Armor Center at Fort Knox.

7.  On 12 February 1990, the applicant received a memorandum of reprimand signed by a brigadier general for refusing to submit to a lawfully requested blood alcohol test on 2 December 1989.  The test was requested by the Louisville Police Department because there was substantial evidence that he had been operating a motor vehicle while under the influence of intoxicants.  On 3 July 1990, it was directed that this memorandum of reprimand be permanently filed in the applicant's performance section of his Official Military Personnel File (OMPF).

8.  On 27 August 1990, the applicant was assigned to the 42nd Field Hospital at Fort Knox.

9.  On 24 October 1990, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 18 September - 3 October 1990.

10.  On or about 1 November 1990, the applicant was turned over to civil authorities and detained on five counts of theft by deception after issuing checks on a closed account totaling $163.58.  He was fined and released by the court.

11.  On 13 December 1990, the applicant pled guilty and was found guilty before 
a summary court-martial for being AWOL from 23 - 28 November 1990.  His sentence consisted of 30 days of confinement and reduction to pay grade E-1.  The sentence was approved on 21 December 1990.

12.  On or about 2 April 1991, the applicant was again released to civil authorities on seven counts of theft by deception after issuing checks with insufficient funds totaling $154.79.  He returned to military control on 22 April 1991.

13.  On 22 April 1991, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Chapter 14 of Army Regulation 635-200 (Personnel Separations) due to obstinate defiance of military order and discipline.  The commander further notified the applicant he was recommending that he be issued an under other than honorable conditions discharge.

14.  The commander advised the applicant of his right to:

* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority supporting his proposed separation action
* to consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* waive any of these rights in writing 
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge
 

15.  On 23 April 1991, the applicant's commander recommended him for discharge due to a pattern of misconduct.  The commander stated that through the applicant's demonstrated unwillingness to comply with Army regulations and the UCMJ he had violated the accepted standards of personal conduct, order, and discipline.  He stated the applicant showed a pattern where this type of behavior may reoccur.

16.  On 29 April 1991, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in any proceedings deemed appropriate.

17.  On 9 May 1991, after having consulted with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of Chapter 14, Army Regulation 635-200 for misconduct.  The applicant:

* requested a personal appearance before an administrative separation board
* requested representation by counsel
* submitted a statement, dated 15 May 1991, in his own behalf

18.  In addition, the applicant acknowledged he may expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge were issued to him and that he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits

19.  Only three pages of the applicant's four-page statement, dated 15 May 1991, were available in the applicant's OMPF.  He described his accomplishments while he was assigned to the 194th Armored Brigade.  He stated he returned to Fort Knox and was confined in the Regional Correctional Facility to await court-martial proceedings, that he received a summary court-martial, and he was punished.  He does not feel he was treated fairly by the command.  He was informed the battalion chaplain did not want him working for him anymore.  He was arrested on two different occasions and detained because his unit did not return him to a "present for duty" status.  He stated he was confined in the Hardin County jail for some bad checks and sentenced to serve 15 days.  However, he had already been punished for his actions and he requested that he be separated with a general discharge so he could support his family and get a fairly decent job upon his release.

20.  On 29 May 1991, the applicant waived his right to a personal appearance before an administrative separation board representation by counsel.

21.  On 12 June 1991, the appropriate authority waived the requirement for a rehabilitative transfer and approved the applicant's recommendation for discharge under the provisions of Chapter 14 of Army Regulation 635-200, due to a pattern of misconduct with an under other than honorable conditions discharge.

22.  The applicant was discharged accordingly, on 21 June 1991.   He had completed 4 years, 7 months, and 8 days net active service.  Item 18 (Remarks) of the applicant's DD Form 214 contains the entry: CONTINUOUS HONORABLE ACTIVE SERVICE FROM 861002-890405 (1986 October 02 - 1989 April 05).

23.  A letter, dated 10 February 2004, from the Defiance County Veterans' Service Commission – VA stated the applicant is currently receiving $341 per month in compensation benefits.

24.  The applicant applied to the ADRB to upgrade his discharge.  On
8 February 1995, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized.

25.  Army Regulation 635-5 (Separation Documents), then in effect, governed the preparation of the DD Form 214.  Effective 1 October 1979, DD Forms 214 were no longer issued for immediate reenlistments and all service would be continuous from the date the last DD Form 214 was issued.  For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except honorable, the following statement will appear as the first entry in block 18:  Continuous Honorable Active Service From (first day of service for which a DD Form 214 was not issued) until (date before commencement of current enlistment).

26.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types of misconduct.  
Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14.

27.  Army Regulation 635-200 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 his under other than honorable conditions discharge should be upgraded to a general discharge.  He also contends that he should be issued two DD Forms 214.  One DD Form 214 should show his period of honorable service and a second one should show the other period.

2.  During the applicant's period of service DD Forms 214 were no longer issued when a Soldier was discharged and immediately reenlisted.  The applicant's period of honorable service is shown in item 18 of his current DD Form 214 as prescribed by the regulation.  Therefore, his DD Form 214 covering his period of service from 2 October 1986 to 21 June 1991 is correct.

3.  The applicant's first enlistment from 2 October 1986 to 5 April 1989 was clearly honorable as shown by five awards of the Army Achievement Medal.  This period of honorable service is shown on his DD Form 214.  However, during his second enlistment, in a period of 16 months he:

* received a memorandum of reprimand from a general officer
* accepted NJP for being AWOL for 16 days
* was convicted by summary court-martial for being AWOL for 6 days
* was arrested on two occasions by civilian authorities for writing bad checks (one arrest resulting in a 15-day jail sentence)

4.  The above offenses clearly show a pattern of misconduct and that his service was unsatisfactory.

5.  The available evidence also shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.
6.  The applicant contends his discharge should be upgraded because he needs assistance from the local VA office.  The letter from the Defiance County Veterans' Service Commission indicates the applicant is currently receiving benefits from the VA.  The ABCMR does not upgrade a properly issued discharge solely for the purpose of making an individual eligible for benefits from another agency.

7.  Based on all of the foregoing, there is no basis to upgrade the applicant's under other than honorable conditions discharge to a general discharge.
 
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)                                         AR20100000416



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ABCMR Record of Proceedings (cont)                                         AR20100000416



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