IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011 

		DOCKET NUMBER:  AR20100027812 


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 an upgrade of his under other than honorable conditions discharge for the period ending 30 May 1989.

2.  He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 May 1989 pertaining to:

* Item 11 (Primary Specialty Number)
* Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized)
* Item 14 (Military Education)
* Item 25 (Separation Authority)
* Item 26 (Separation Code)
* Item 28 (Narrative Reason for Separation)

3.  He states his DD Form 214 for the period ending 30 May 1989 should reflect the following corrections:

* Item 11 - 21B (Combat Engineer) 
* Item 13 - Certificate of Achievement Award, Army Achievement Medal, and Army Good Conduct Medal
* Item 14 - Map Reading Class

4.  He also states that he served a first tour of duty from July 1984 to August 1987 and he was honorably discharged.  After immediately reenlisting, he married and the marriage caused him to have severe personal problems.  In effect, one time he returned late to his unit due to the ongoing marital issues and he was considered absent without leave (AWOL).  The marriage ended in divorce after the birth of his son.  Prior to the divorce, in an attempt to save the marriage, he requested an early separation from the Army.  He was informed that in order to do this, his separation record would reflect misconduct.  It is his belief this is an injustice that should be corrected.  He served his country with honor as reflected in his first discharge.  Since leaving the service, he has been very responsible as a father, citizen, and employee.

5.  He provides:

* a Certificate of Achievement
* his Army Achievement Medal certificate
* his Honorable Discharge Certificate, dated 31 August 1987
* his DD Form 214 for the period ending 30 May 1989
* his DD Form 149 (Application for Correction of Military Record), dated
26 August 1997
* page 2 of his DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 20 July 1998
* a letter from the Chief, Army Review Boards Agency Support Division, St. Louis, MO, dated 17 August 1998

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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 19 May 1984.  He was discharged from the USAR DEP on
9 July 1984 and he enlisted in the Regular Army (RA) on 10 July 1984 for a period of 3 years, in pay grade E-1.  He completed training and he was awarded military occupational specialty (MOS) 16P (chaparral crewmember).

3.  Item 13 (Civilian Education and Military Schools) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows he completed the 7-week Missile Crewmember (16P) Course in 1984.

4.  He served in Hawaii from 13 November 1984 through 23 June 1986.  He was promoted to pay grade E-5 on 1 May 1986.

5.  He provided a copy of his Certificate of Achievement, dated 28 August 1985, awarded for exceptional performance from 1 to 28 June 1985 while deployed in Hawaii.

6.  He also provided a copy of his Army Achievement Medal certificate, dated 23 March 1987, awarded for exceptionally meritorious achievement during Exercise Roadrunner from 23 to 30 January 1987.

7.  Permanent Orders A-111-2, issued by Headquarters, III Corps, Fort Hood, TX, dated 4 August 1987, awarded him the Army Good Conduct Medal (1st Award) for the period 10 July 1984 through 9 July 1987.

8.  He was honorably discharged on 31 August 1987 for the purpose of immediate reenlistment.  He reenlisted in the RA on 1 September 1987 for a period of 3 years.  He served in MOS 16P.

9.  A DD Form 2329 (Record of Trial by Summary Court-Martial) shows he was convicted of one specification of AWOL from 4 December 1987 to 19 January 1988.  He was sentenced to confinement for 30 days.  On 25 February 1988, the convening authority approved the sentence and ordered it executed.

10.  On 14 November 1988, he accepted non-judicial punishment under
Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty on 4 October 1988.

11.  On 8 February 1989, a DA Form 4126-R (Bar to Reenlistment Certificate) was approved against him for failing to pass two consecutive Army Physical Fitness Tests administered on 29 June 1988 and 14 December 1988.  On

10 February 1989, the applicant acknowledged approval of the Bar to Reenlistment Certificate.  He elected not to appeal the approved bar action.

12.  Orders 93-131, issued by Headquarters, 1st Cavalry Division, Fort Hood, dated 16 May 1989, reduced him to private (PV1)/E-1, effective 12 May 1989.

13.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a copy of his DD Form 214 for the period ending 30 May 1989 that shows he was discharged in pay grade E-1 on 30 May 1989, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), chapter 14, section II, by reason of misconduct - pattern of misconduct with service characterized as under other than honorable conditions.  He was credited with
4 years, 10 months, and 21 days of creditable active service.  His DD Form 214 does not show he was credited with any time lost.

14.  His DD Form 214 for this period lists the following entries:

* Item 11 - 16P1O, Chaparral Crewmember, 4 years & 7 months
* Item 13 - Army Service Ribbon, Overseas Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Item 14 - "None"
* Item 25 - Chapter 14, Army Regulation 635-200
* Item 26 - JKM
* Item 28 - Misconduct - pattern of misconduct

15.  On 29 October 1998, the Army Discharge Review Board denied his request for an upgrade of his under other than honorable conditions discharge.

16.  Army Regulation 635-200, chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

17.  Army Regulation 635-200, paragraph 3-7a, specified an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

18.  Army Regulation 635-200, paragraph 3-7b, provided a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

19.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It stated for:

* Item 11, enter the MOS codes, titles, years, and months for enlisted personnel
* Item 13, enter decorations, medals, badges, commendations, citations and campaign ribbons awarded or authorized (All periods of service)
* Item 14, list in-service training courses; title, number of weeks, year successfully completed during this period of service; this information is to assist the member after separation in job placement and counseling; therefore, training courses for combat skills will not be listed

20.  Army Regulation 635-5 further states to list awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22. Army Regulation 600-8-22 gives the order of precedence for awards and decorations.  Only decorations, medals, and ribbons are listed.  Certificates of achievement, letters of appreciation, and similar documents are not listed

21.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs to be used for these stated reasons.  It states that the SPD code "JKM" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 14, by reason of "Misconduct - pattern of misconduct."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends several corrections should be made to his DD Form 214 for the period ending 30 May 1989 in addition to an upgrade of his under other than honorable conditions discharge.

2.  With respect to Item 11 of this DD Form 214, there is no evidence he was awarded MOS 21B or that he served in this MOS during his periods of active service.  Therefore, he is not entitled to correction of Item 11 to show any other MOS other than his confirmed MOS of 16P.

3.  With respect to Item 13 of this DD Form 214, permanent orders awarded him the Army Good Conduct Medal (1st Award) for the period 10 July 1984 through 9 July 1987.  He was also awarded the Army Achievement Medal during this period of service.  Therefore, his DD Form 214 for this period should be corrected to show these awards.

4.  With respect to Item 14 of this DD Form 214, his completion of the 7-week Missile Crewmember (16P) Course in 1984 is not in question; however, training courses for combat skills are not listed on the DD Form 214.  

5.  With respect to adding the Map Reading Course to Item 14 of this
DD Form 214, there is no evidence and he provided none to show he completed this course during this period of active service.  Therefore, he is not entitled to correction to this DD Form 214 to show this course.

6.  With respect to Items 25, 26, and 28 of this DD Form 214, the evidence of record shows he reenlisted in the RA on 1 September 1987 for a period of
3 years.  On 30 May 1989, he was discharged under the provisions of Army Regulation 635-200, chapter 14, for Misconduct - pattern of misconduct.  He was assigned an SPD code of "JKM."  Therefore, the separation authority, separation code, and narrative reason for separation are commensurate with and corresponds to the reason for his discharge.

6.  He has failed to show through the evidence submitted or the evidence of record that the entries in Items 25, 26, and 28 shown on this DD Form 214 are incorrect.  There is no evidence of record and he provided none to show he was unclear regarding the reason for his discharge.

7.  With respect to the certificate of commendation/achievement, commanders may recognize acts, achievements, or periods of faithful service or special acts 

which do not meet the standards required for decorations by issuing a DA Form 2442 (Certificate of Achievement) or a certificate of achievement or commendation of local design.  Although copies of certificates of achievement or commendation will be filed in the official military personnel file, there is no distinguishing device authorized for wear to indicate the receipt of a certificate of achievement or commendation and there is no provision to list such certificates on the DD Form 214.  Therefore, there is no basis for granting this portion of his request.

8.  The documentation he provided with his application was also carefully considered.  However, he has submitted neither probative evidence nor a convincing argument in support of his request and his military record contains no evidence which would entitle him to an upgrade of his discharge.  It appears his misconduct diminished the quality of his service below that meriting a general or an honorable discharge.

9.  Without evidence, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

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 adding to Item 13 of his DD Form 214 for the period ending 30 May 1989 the Army Good Conduct Medal (1st Award) and the Army Achievement Medal.

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 correcting his DD Form 214 for the period ending 30 May 1989 by:

	a.  adding to Item 11 MOS 21B or any other MOS;

	b.  adding to Item 13 the Certificate of Achievement;

	c.  adding to Item 14 the Map Reading Course or the Missile Crewmember (16P) Course;

	d.  correcting Items 25, 26, and 28 of this DD Form 214; and

   e.  upgrading his under other than honorable conditions discharge to a general or 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)                                         AR20100027812



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ABCMR Record of Proceedings (cont)                                         AR20100027812



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