IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110004095 


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, in effect, correction of the reentry (RE) code, prior service, and foreign service shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 November 1989.  He also requests correction of his record to show he retired based on his more than 15 years of service.

2.  He states item 12d (Total Prior Active Service) shows the same entry as the DD Form 214 he received on 28 January 1988, item 12f (Foreign Service) does not show his total foreign service, and item 27 (RE Code) shows "NA."

3.  He provides a self-authored statement and DD Forms 214 for periods ending 28 January 1988 and 3 November 1989.

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 Regular Army (RA) on 26 June 1974.  On 28 January 1988, he was discharged by reason of being ordered to an active duty Guard/Reserve tour as a warrant officer.  He was appointed as a U.S. Army Reserve (USAR) warrant officer on 29 January 1988 and entered active duty that date.  He was discharged on 3 November 1989.

3.  Item 12d (Total Prior Active Service) of his DD Form 214 covering the period 7 April 1987 to 28 January 1988 shows he had completed 12 years, 9 months, and 11 days of prior active service.  Item 12c (Net Active Service This Period) shows he had completed 9 months and 22 days of active service during the period covered by the DD Form 214.

4.  Item 12d of his DD Form 214 for the period 29 January 1988 to 3 November 1989 also shows 12 years, 9 months, and 11 days of prior active service.  Item 12f (Foreign Service) shows 1 year, 8 months, and 13 days.  Item 27 (RE Code) shows "NA."

6.  His Officer Record Brief (ORB) shows he departed the continental United States for an assignment in Korea in February 1988 and served in Korea until his discharge on 3 November 1989.  The exact date of his arrival in Korea is not recorded in the available records.  

7.  A DD Form 458 (Charge Sheet), dated 29 January 1988, shows he was charged with ten specifications of stealing military property and one specification of wrongfully disposing of military property.  

8.  A DD Form 457 (Investigating Officer's Report) shows an investigating officer recommended dismissal of two of the specifications of stealing military property and the specification of wrongfully disposing of military property.  The investigating officer further recommended that six of the remaining specifications of stealing military property be changed to wrongful appropriation.

9.  On 24 July 1989, he voluntarily tendered his resignation from the Army for the good of the service under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 5.  He acknowledged he had been fully advised by counsel; had been afforded the opportunity to present matters in explanation, mitigation, or defense of his case; and understood his resignation, if accepted, could be considered as being under other than honorable conditions.  

10.  On 6 October 1989, the proper authority approved his resignation with issuance of a general discharge.

11.  On 13 August 2004, the Army Discharge Review Board (ADRB) informed him the characterization of his service had been upgraded to honorable.  The Case Report and Directive shows the ADRB found his discharge was proper but inequitable as to characterization.

12.  He provides the following self-authored statement:

I served proudly and diligently from June 25, 1974 until I was forced to resign for the better of the service on Nov 3, 1989.  Over the years I have been haunted over the injustice that I was given by my superior officer and would like to be given the opportunity to redeem myself and complete my military term to retirement.  The fact that I excelled through the ranks to E-7 in about 11 yrs of service and went through the warrant officers training should have some merit to the type of Soldier I was.

I received a general under honorable conditions discharge at the time which I later appeared before the review board and had it upgraded to an honorable discharge.  However this was not enough to allow me to re-enter the Army to complete my military service.  Lacking a re-enlistment code on my DD 214 form no branch of the army could take me back in.  Being familiar with the policies that under most conditions re-enlistment codes can be waivered but no one can explain or verify how to correct a code of N/A.  I attempted in many ways over the years to re-enter the Army but was met with a wall all based on my final year of circumstances under a commander that was literally out to destroy me.

My rage at being charged in the first place made me lose my faith in my military leadership, and that there was no chance of me getting fair treatment.  Given the conditions in which the charges that [were] brought against me of larceny of government property, I depended on the military justice system to see through the prejudices of my leadership.  The same leadership that allowed the same witnesses against me (an E-5, E-6 and E-7) to be charged with failure to perform their duties, drunk and disorderly, destruction of military property as well as assault on a female civilian to continue their tour without a mark on their military record.  I know this to be true because I was the officer that signed their releases from the military police and stood before the commander as their [officer in charge].

The article 32 hearing dismissed some of the charges totally, reduced the majority to misappropriation of military property and reduces the court martial from a general to a special which if accepted by the battalion commander would have allowed for reasonable punishment for a $178.00 misjudgment that I made and willing to accept without forfeiting my career.  Both the military justice system and my leadership failed me to where I was given no choice but to resign for the better of the service.

I am asking the board, did forfeiting 15+ years of dedicated service, all future benefits and putting my wife of only 4 years and 2 year old son through the shame of being flown from Korea on an escorted military prisoner flight to Oakland fit the crime?

And is there any way that I can be given the opportunity to complete my military career, or retire with the 15+ years that I actually had? 

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The version in effect at the time stated for item 12d enter total amount of prior active military service less lost time, if any, and for item 12f enter the total amount of foreign service completed during the period covered in block 12c.  The instructions for item 27 state reentry codes are not assigned to officers, and "NA" will be entered in this block for officers.

14.  Army Regulation 635-120 implemented the statutory provisions of Title 10, U.S. Code, governing active duty officer resignations and discharges.  Chapter 5 of this regulation provided that an officer could submit a resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court-martial, the officer was under suspended sentence of dismissal, or the officer elected to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100 (Personnel Separations - Officer Personnel).  The regulation provided that a resignation for the good of the service, when approved at Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions.

15.  Army Regulation 635-100, in effect at the time, stated that by law any warrant officer with at least 20 years of active Federal service could, on his or her application and at the discretion of the Secretary of the Army, be retired.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant voluntarily tendered his resignation for the good of the service instead of appearing before a court-martial to address the charges against him.  The record does not show and he has not provided evidence showing his discharge was improper or that his rights were not protected during the discharge process.  While a court-martial may have convicted him and given him a sentence more severe than the discharge he received as a result of tendering his resignation, there was also the possibility a court-martial may have found him not guilty or, if found guilty, given him a sentence that would have allowed him to continue in service.  

2.  When he submitted his resignation, he had not completed the 20 years of active duty service required by law for a military retirement.  There is no statutory or regulatory basis for granting him a retirement based on 15 years of service.

3.  Because he was an officer when he was discharged in 1989, his DD Form 214 correctly shows the RE code "NA" in item 27.  

4.  The governing regulation provides that item 12f of DD Form 214 will show the total foreign service during the period covered by the form.  His DD Form 214 for the period ending 3 November 1989 shows 1 year, 8 months, and 13 days of foreign service.  In the absence of documentation showing otherwise, it must be presumed that this is an accurate total of his foreign service during the period in question.

5.  Item 12d of his DD Form 214 for the period ending 3 November 1989 shows the same entry for prior service as his DD Form 214 for the period ending 28 January 1988.  It appears that this entry was erroneously carried forward onto his final DD Form 214.  Item 12d of his final DD Form 214 should show the sum of the prior service and net active service shown on the earlier DD Form 214 as follows:

		12 years	  9 months	11 days
	+	              	  9 months	22 days
		13 years	  7 months	  3 days



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 deleting the entry in item 12d of his final DD Form 214 and adding 13 years, 7 months, and 3 days.

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 his RE code, prior service, and retirement.  



      _______ _   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)                                         AR20110004095





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ABCMR Record of Proceedings (cont)                                         AR20110004095



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