IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100012041 


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 the following corrections:  

* An upgrade of his bad conduct discharge to a fully honorable discharge
* Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* Item 12a (Date Entered AD (Active Duty) This Period) from 25 June 1979 to ?? September 1976
* Item 12b ((Separation Date This Period) from 2 November 1989 to ?? June 1988

* The issuance of a Statement of Service for the period September 1976 through September 1979 with an honorable character of service 
* Correction of the current Statement of Service for the period September 1979 through 1986 with an honorable character of service

2.  The applicant states he requested a copy of his DD Form 214 but his records were not available.  He then received a Statement of Service but it contained several administrative errors.  He adds that:

	a.  He was married with a son when he received reassignment orders to Hawaii.  However, his marriage ended and he was awarded temporary custody of his son.  His company commander and unit first sergeant were not supportive of having a single parent in the unit.  He later received instructions to travel to Colorado for the final disposition and had to go to the battalion sergeant major to get his leave approved.  The court awarded him custody and he had to stay longer in Colorado to finalize the visitation rights and other administrative issues. But his company commander and first sergeant gave him an ultimatum to return to Hawaii.  He called the battalion sergeant major and he was told by an administrative sergeant that his leave was extended.  However, when he returned to Hawaii, his chain of command told him he had been reported in an absent without leave (AWOL) status and would be subsequently court-martialed and ultimately discharged with a bad conduct discharge.  He believes his chain of command made him choose between his family and the Army because at the time the Army did not have family programs as it does today. 

   b.  He has suffered the stigma of his conviction since 1988.  He has since improved his life, personally, educationally, and professionally.  He continues to support the warfighter and the country through his highly responsible position in the defense industry.  As he approaches the later years of his life, he wants this injustice corrected.  

3.  The applicant provides the following documents:

* DD Form 214, dated 2 November 1989
* AHRC Form 3553-1E (Statement of Service)
* A letter of support
* A Joint Service Commendation Medal certificate
* Pages 2 and 4 of his 4-page DA Form 2-1 (Personnel Qualification 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.  None of the applicant’s enlistment contracts are available for review with this case; however, item 18 (Appointments and Reductions) of his DA Form 2-1 indicates he enlisted in the Regular Army (RA) on 7 October 1976.  Additionally, item 20 of this form shows his Basic Enlisted Service Date (BESD) as 18 October 1976 after having been adjusted for at least one period of lost time (11 days), suggesting his entry date was 7 October 1976.  

3.  His DA Form 2-1 and DD Form 214 show he held military occupational specialty 76Y (Unit Supply Specialist) and appears to have been discharged on 24 June 1979 for the purpose of immediate reenlistment.  He completed 2 years, 8 months, and 18 days of creditable active service during this period.  His rank/grade at that time was specialist four (SP4)/E-4. 

4.  His DD Form 214 shows he reenlisted in the RA on 25 June 1979.  He also served through another reenlistment on 25 March 1982 and attained the rank/grade of staff sergeant (SSG)/E-6 on 8 August 1983.  He was assigned to the 25th Supply and Transportation Battalion, 25th Infantry Division, Hawaii. 

5.  On 17 December 1987 and 21 January 1988, he was tried by a special court-martial that convened at Schofield Barracks, Hawaii.  Contrary to his pleas of not guilty, the court convicted him of one specification of being AWOL from 17 to 28 September 1987, one specification of disobeying a lawful order, two specifications of dishonorably failing to pay a just debt, and one specification of assault and battery.  The court sentenced him to a reduction to the lowest enlisted grade and a bad conduct discharge.

6.  On 4 April 1988, the convening authority approved the sentence and, except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On 3 November 1988, the U.S. Army Court of Military Review set aside the findings of guilty of the two specifications of dishonorably failing to pay just debts but affirmed the remaining approved findings of guilty and the sentence.

8.  On 7 September 1989, the U.S. Court of Military Appeals affirmed the decision of the U.S. Army Court of Military Review.

9.  Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, Special Court-Martial Order Number 48, dated 28 September 1989, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge executed.

10.  He was discharged from the Army on 2 November 1989.  His DD Form 214 shows he was discharged as a result of court-martial with a bad conduct discharge.  This form further confirms he completed a total of 10 years, 4 months, and 9 days of creditable military service and had 11 days of lost time.  Additionally, this form shows: 

* Item 12a shows the entry "79  06  25"
* Item 12b shows the entry "89  11  02"
* Item 12c (Net Active Service This Period) shows what appears to be the entry "9  3  8"
* Item 12d (Total Prior Active Service) shows the entry "0  0  0"
* Item 12e (Total Prior Inactive Service) shows the entry "3  0  17"
* Item 29 (Dates of Lost Time During This Period) shows two entries: 870917 to 870927 (11 days) and 871010 to 871101 (23 days)

11.  On 12 February 1990, he submitted a petition for a new trial to The Judge Advocate General; however, on 29 June 1990, his request was denied.

12.  On 18 February 2010, the Chief, Veterans Inquiry Branch, Army Personnel Records Division, U.S. Army Human Resources Command, St. Louis, MO (HRC-STL), issued the applicant a Statement of Service for the period 25 June 1979 through 2 November 1989 with an under other than honorable conditions character of service.  The statement also shows he had 11 days of lost time.

13.  On 6 April 2010, HRC-STL voided the Statement of Service that was issued on 18 February 2010 and issued the applicant a new one with the same information but with 31 days instead of 11 days of lost time.  

14.  The applicant submitted the following documents:

	a.  A certificate, dated 27 July 1984, showing award of the Joint Service Commendation Medal for outstanding service from June 1982 through July 1984.

	b.  A letter of support, dated 8 January 2002, from the applicant’s former defense counsel who describes the applicant as a motivated, willing, and able individual.  He adds that the applicant never disputed the conduct that resulted in the charges of AWOL and assault.  He disputed that the conduct in question was the appropriate basis for the court-martial.  He also states that the applicant’s company commander at the time was young and inexperienced and may not have understood that a Soldier’s priority in peacetime is the family.  Additionally, the charge of assault was for a simple pushing a Soldier in the barracks that was of great concern to a leadership about junior Soldiers being abused by drill sergeants and senior noncommissioned officers at the time. 


15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

16.  Army Regulation 635-200 (Personnel Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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.

18.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  Effective 1 October 1979, military personnel who were discharged for the purpose of immediate reenlistment were no longer issued a separate DD Form 214.  A breakdown of entries in item 12 is as follows:  Item 12a shows the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued; item 12b shows the Soldier’s transition/separation date; items 12c and 12d show all service, less time lost under 10 U.S.C. 972 and time lost after expiration of term of service; and item 12e shows prior inactive service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded; his dates of entry and separation on the DD Form 214 should be corrected; he should be issued an honorable statement of service for his first period of service; and his current statement of service should be corrected. 

2.  With respect to his first period of service, the evidence of record indicates he initially enlisted on 7 October 1976 and he was discharged on 24 June 1979 for the purpose of immediate reenlistment.  He completed 2 years, 8 months, and 18 days of creditable active service during this period of initial enlistment.  Since a copy of his DD Form 214 documenting this period of active duty is not available for review with this case and since he was allowed to reenlist, it is reasonable to presume his service was honorable and he should therefore be issued an appropriate document to record this period of active service.

3.  With respect to his character of service on the DD Form 214, his trial by a special court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  After a review of his entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is an insufficient basis to upgrade his discharge to either an honorable or a general discharge.

5.  With respect to the existing Statement of Service, issued on 6 April 2010, since his DD Form 214 is available, the Statement of Service is no longer needed and should be voided.

6.  With respect to his entry and separation dates on the DD Form 214, the evidence of record shows he reenlisted on 25 June 1979 and served continuously through a reenlistment and was discharged on 2 November 1989. Item 12a of his DD Form 214 correctly reflects the entry "79  06  25," the date he reenlisted, and item 12b correctly reflects the entry "89  11  02," the date he was discharged. 

7.  However, he completed 10 years, 4 months, and 9 days of creditable active service during the period covered by this DD Form 214, which when subtracting 34 days of lost time (11 plus 23) equates to 10 years, 3 months, and 5 days.  His DD Form 214 incorrectly shows 9 years, 3 months, and 8 days.  Therefore, item 12c of his DD Form 214 should be corrected to show the correct net active service this period. 


8.  Additionally, he previously completed 2 years, 8 months, and 18 days of creditable active service during his initial enlistment.  His DD Form 214 incorrectly shows 3 years and 17 days and lists this prior service in the wrong block, item 12e.  Therefore, items 12d and 12e of his DD Form 214 should be corrected to show the correct prior active and inactive service.

9.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  __X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Issuing the applicant a Statement of Service for the period 7 October 1976 through 24 June 1979 in the rank/grade of SP4/E-4 and an honorable character of service
* Voiding the Statement of Service, dated 6 April 2010
* Deleting from item 12c of his DD Form 214 the entry "9  3  8" and adding the entry "10  3  5"
* Deleting from item 12d of his DD Form 214 the entry "0  0  0" and adding the entry "2  8  18"
* Deleting from item 12e of his DD Form 214 the entry "3  0  17" and adding the entry "0  0  0"




2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the upgrade of his discharge or the issuance of a Statement of Service, for the period ending on 2 November 1989, showing an honorable discharge.  



      _______ _  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)                                         AR20100012041



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ABCMR Record of Proceedings (cont)                                         AR20100012041



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