BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100011590 


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 character of service for his period of active duty be corrected from under honorable conditions to honorable.

2.  The applicant states that his DD Form 214 (Certificate of Release or Discharge) shows one type of discharge and his discharge orders show another. 

3.  The applicant provides copies of his DD Form 4 (Enlistment/Reenlistment Document  - Armed Forces of the United States), DA Form 2-1 (Personnel Qualification Record - Part II), DD Form 214, a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), and U. S. Army Reserve Personnel Center (ARPERCEN) Orders D-06-036853.

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.  Attempts by the National Personnel Records Center to locate the applicant's military records have met with negative results.  Information herein was obtained from documents provided by the applicant.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program on 12 June 1979.  He enlisted in the Regular Army on 30 May 1980, completed training, and was awarded military occupational specialty 13B (Cannon Crewman).

4.  On 13 August 1981, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful possession of marijuana.

5.  The applicant's separation packet is not available.

6.  On 9 September 1981, the applicant was released from active duty and transferred to the USAR Control Group (Annual Training) in accordance with Army Regulation 635-200, paragraph 5-31h(1) (Expeditious Discharge Program). His characterization of service is shown as under honorable conditions.  

7.  ARPERCEN Orders D-06-036853, dated 4 June 1985, discharged the applicant from the USAR (Annual Training) with an honorable characterization of service.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  It provides the following pertinent information under:

	a.  Chapter 3, as in effect at that time, outlines the criteria for characterization of service as follows:

		1)  paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty;  

		2)  paragraph 3-7a(1) in pertinent part states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art 15."  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service"; and

		3)  paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  

	b.  Chapter 5, as then in effect, provided for the Expeditious Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.  

9.  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 provides the following:

	a.  a DD Form 214 is prepared to document 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; and

	b.  a DD Form 256A is an Honorable Discharge Certificate, issued at the time of discharge. 

10.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that his DD Form 214 shows one type of discharge and his discharge orders show another.

2.  Contrary to popular belief, the vast majority of those leaving the active Army after completing an initial enlistment are released from active duty rather than discharged.  The key difference lies in that a discharge completely relieves the individual of any additional military service obligation, whereas a release from active duty may leave an additional military service obligation to be carried out in a Reserve component.

3.  The applicant's was released from active duty and transferred to the USAR on 9 September 1981 with a characterization of service of under honorable conditions.  That characterization appears appropriate considering his Article 15.  This is documented on the DD Form 214.

4.  Four years later the applicant had completed his total period of obligated service and was discharged and issued an Honorable Discharge Certificate in accordance with ARPERCEN orders.  These orders do not negate the earlier  DD Form 214 or the determination that his period of service on active duty was under honorable conditions.

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)                                         AR20100011590





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ABCMR Record of Proceedings (cont)                                         AR20100011590



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