BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100024995 


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 correction of his records to show:

* He paid into the Post-Vietnam Era Veteran's Educational Assistance Program (VEAP)
* He served overseas from 1990 to 1991

2.  The applicant states he should not have been discharged while attending to court proceedings from January 1992 to January 1994.  Additionally, he states he paid into the Montgomery GI Bill (MGIB) during 1989-1990 and he served overseas.  He also states "the discharge did not give precedence to the second amendment right to bear arms to where it is a duty to protect the Constitution of the United States of America."  He was accused of weapons possession.  But his "Rap Sheet" shows "No Hit."  A "No Hit" is defined according to the Patrol Guide Procedures of the New York City Police Department as "no record is to have existed of criminal possession of a weapon."  

3.  The applicant provides:

* Criminal history record
* Arrest charges
* Extract of law pertaining to provisions related to firearms
* New York City Patrol Guide procedures
* Hand-written papers related to the Constitution


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 records show he enlisted in the Regular Army for a period of 3 years on 12 July 1989.  He completed basic combat and advanced individual training at Fort Jackson, SC, and he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  He also completed parachutist training at Fort Benning, GA.

3.  Subsequent to completion of MOS and parachutist training, he was reassigned to Fort Bragg, NC.  He was assigned to the 27th Engineer Battalion.  The highest rank/grade he attained during his military service was private first class/E-3.

4.  His records further show he was awarded the Army Achievement Medal, the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Parachutist Badge.

5.  On 3 September 1991, he departed his unit at Fort Bragg, NC in an absent without leave (AWOL) status, and on 2 October 1991 he was dropped from Army rolls as a deserter.  On 14 July 1992, he was apprehended by civil authorities in New York City, NY, and he was returned to military control at Fort Dix, NJ.

6.  Subsequent to his return to military control, court-martial charges were preferred against him for one specification of violating Article 85 (Desertion) of the Uniform Code of Military Justice (UCMJ) for being AWOL from 2 October 1991 to 14 July 1992.




7.  The applicant's record is void of the complete facts and circumstances surrounding his discharge.  However, his record contains Orders 321-86, issued by Headquarters, Fort Dix, NJ, dated 16 November 1992, directing that he be reduced to the lowest enlisted grade and discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), with an under other than honorable conditions discharge, effective 16 December 1992.

8.  His record also contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 16 December 1992, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, with service characterized as under other than honorable conditions.  He completed 2 years, 6 months, and 24 days of total active service and he had lost time from 3 September 1991 to 13 July 1992.  This form also shows the following entries:

* Item 12f (Foreign Service) - "0000  00  00"
* Item 15a (Member Contributed to the "Post-Vietnam Era Veteran's Educational Assistance Program (VEAP)) - "No"

9.  On 30 April 1998, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  He submitted:

	a.  Criminal history and/or arrest record, dated 10 August 2006, that shows various charges, arrest information, and the disposition.

	b.  Extracts of laws related to criminal possession of firearms.

	c.  New York City Patrol Guide Procedures related to firearms.

	d.  Self-authored hand-written sheets related to the Constitution and the right to bear arms.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.
12.  Army Regulation 635-200, 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.

13.  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.

14.  According to the Manual of Courts-Martial, Article 85 of the UCMJ applies to any member of the armed forces who without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States.  The maximum punishment when desertion is terminated by apprehension is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.  In all other terminations, a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. 

15.  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 their military service.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states item 12h shows the total service completed outside continental United States during the period covered by the DD Form 214.  Item 15a shows a yes or no entry.  If a Soldier contributed to VEAP and did not get money back, mark "Yes."  For those who enlisted before 1984, contributed to VEAP, and received their money back, mark "No."  For any Soldier who enlisted after 1985 mark "No."





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show: 

* he paid into VEAP
* he served overseas from 1990 to 1991

2.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 16 December 1992 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by a court-martial.

3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required the applicant to voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed all requirements of law and regulation were met and his rights were fully protected 
throughout the separation process.  He has provided no evidence that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his last enlistment. 

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  His discharge appears to be appropriate and there is no reason to change it. 

5.  With respect to his overseas service, the evidence of record shows subsequent to completion of MOS and airborne training, the applicant was reassigned to Fort Bragg, NC, before he went AWOL and/or DFR.  There is no evidence and he has provided none to show he served overseas.  

6.  There is no provision in the regulation that provides for annotating the version of the DD Form 214 the applicant was issued to show the MGIB.  The entry in item 15a pertains to contributions towards a post–Vietnam era VEAP for those who enlisted before 1984 and contributed to VEAP.  The applicant enlisted after 1985; therefore, item 15a is correctly annotated "No."








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)                                         AR20100024995



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ABCMR Record of Proceedings (cont)                                         AR20100024995



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