IN THE CASE OF:	  

		BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110014286 


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 bad conduct discharge to a general discharge.  He also requests correction of his DD Form 214 (Certificate of Release or Discharge from active Duty) to show:  

* Completion of 8 years and 4 months of military service
* All his military schools and awards
* He entered active duty at Fort Jackson, SC, vice Fort Ord, CA
* He received two honorable discharges

2.  The applicant states, in effect, his DD Form 214 contains errors.  Additionally, he has been an outstanding citizen since his confinement at Fort Riley, KS, and he has received multiple awards and training certificates in the private sector. 

3.  The applicant provides:

* DD Form 214
* Certificate and orders awarding him the Army Achievement Medal
* Two Honorable Discharge Certificates
* Enlistment certificate
* Certificates of achievement
* Congratulatory letters
* Orders awarding him the Army Good Conduct Medal (1st Award)
* Certificate of service
* Letter from the Secretary of Veterans Affairs
* Certificate of attendance
* Multiple certificates of training, completion, and/or appreciation after discharge

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 initially enlisted in the Regular Army (RA) in San Juan, Puerto Rico, on 29 October 1976.  He completed basic combat at Fort Jackson, SC, and advanced individual training at Fort Benning, GA, and he was awarded military occupational specialty 11B (Infantryman).

3.  He served in Italy from 23 October 1979 to 15 August 1980 but he was not credited with completion of an overseas tour.  While in Italy, he was honorably discharged on 17 July 1980 for the purpose of immediate reenlistment. 

4.  He completed 3 years, 8 months, and 19 days of creditable active service but he was not issued a DD Form 214.  Effective 1 October 1979, military personnel who were discharged for the purpose of immediate reenlistment were no longer issued a separate DD Form 214.

5.  His DA Form 2-1 (Personnel Qualification record) shows he completed various military training courses between 1977 and 1979, including airborne training; jungle training; expert infantryman badge training; small arms repairman; ranger school (did not complete); German jump school; and nuclear, biological, and chemical course training.

6.  He executed a 3 years reenlistment in the RA in Vicenza, Italy, on 18 July 1980.  He was again honorably discharged on 1 December 1981 for the purpose of immediate reenlistment.  He completed 1 year, 4 months, and 14 days of creditable active service and 3 years, 8 months, and 19 days of prior service, for a total of 5 years, 1 month, and 3 days.

7.  He executed a 3-year reenlistment at Fort Ord, CA, on 2 December 1981.  He subsequently served in Germany from 20 January 1982 to 22 May 1984 and he was credited with completion of an overseas service tour.  He attained the rank/grade of staff sergeant/E-6.

8.  On 22 May 1984, he was convicted by a general court-martial that convened in Germany of one specification of possessing marijuana, one specification of soliciting to distribute marijuana, and two specifications of distributing marijuana. The court sentenced him to a reduction to the lowest enlisted grade, confinement at hard labor for 1 year, a forfeiture of all pay and allowances, and a bad conduct discharge.

9.  On 5 July 1984, 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.

10.  On 4 October 1984, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence, and on 13 February 1985, the U.S. Court of Military Appeals denied his petition for review.

11.  Headquarters, U.S. Army Correctional Facility, Fort Riley, KS, General Court-Martial Order Number 10, dated 10 January 1985, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge executed.

12.  He was discharged from the Army on 25 June 1985.  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 2 years, 9 months, and 11 days of creditable military service during this period and he had 283 days of lost time.  Additionally, this form shows: 

* Item 6 (Place of Entry Into Active Duty) – Fort Ord, CA
* Item 12a (Date Entered active Duty This Period) – "81  12  02"
* Item 12b (Separation Date This Period) – "85  06  25"
* Item 12c (Net Active Service This Period) – "02  09  1"
* Item 12d (Total Prior Active Service) – "05  01  03"
* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons awarded or Authorized) – the:

* Army Service Ribbon
* Parachute Badge
* Army Good Conduct Medal (2nd Award)
* Army Achievement Medal
* Expert Infantryman Badge
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Grenade Bar

* Item 14 (Military Education) – "NA (Not Applicable)"
* Item 18 (Remarks) does not contain an entry regarding his reenlistments"
* Item 29 (Dates of Lost Time During This Period) shows two entries: 840522 to 841201 (194 days) and 841202 to 850228 (89 days)

13.  He submitted:

* A certificate and Permanent Orders Number 117-16, dated 30 June 1982, awarding him the Army Achievement Medal.
* Two Honorable Discharge Certificates, dated 17 July 1980 and 1 December 1981
* Permanent Orders 163-21 awarding him the Army Good Conduct Medal (1st Award)
* Multiple letters of recognition, certificates of training or completion, congratulatory notes, and other documents dated subsequent o his discharge

14.  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.

15.  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.

16.  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.

17.  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.  The regulation in effect at the time of his discharge states:

* Item 6 - enter the city and state from which member last entered on active duty from civilian life. 
* Item 12a - enter the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued
* Item 12b - enter the date of separation or discharge
* Item 12c - enter the net service between items 12a and 12b, all service entered will be less time lost under Title 10, U.S. Code, section 972
* Item 12d - enter the total prior active service
* Item 14 - enter in–service training courses; title, number of weeks, and 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.
* Item 18, is used for entries required by Department of the Army for which a separate item is not available on the form and for completing entries that are too long for their blocks.  A mandatory entry is for reenlistment
* Enter a list of enlistment periods for which a DD Form 214 was not issued. For example, "immediate reenlistments this period 761201 – 781010" 

DISCUSSION AND CONCLUSIONS:

1.  With respect to the date of entry and periods of service: 

	a.  The applicant initially enlisted in the RA on 29 October 1976 in San Juan, PR.  He was honorably discharged on 17 July 1980 for the purpose of immediate reenlistment.  He completed 3 years, 8 months, and 19 days of creditable active service but he was not issued a DD Form 214.  Effective 1 October 1979, military personnel who were discharged for the purpose of immediate reenlistment were no longer issued a separate DD Form 214.

	b.  He reenlisted in the RA in Vicenza, Italy, on 18 July 1980.  He was again honorably discharged on 1 December 1981 for the purpose of immediate reenlistment.  He completed 1 year, 4 months, and 14 days of creditable active service and 3 years, 8 months, and 19 days of prior service, for a total of 5 years, 1 month, and 3 days.

	c.  He reenlisted at Fort Ord, CA; not Fort Jackson, SC, as he contends, on 2 December 1982 and he was discharged on 25 June 1985.  He completed 3 years, 6 months, and 24 days of total service during this period.  However, this service was reduced by 283 days of lost time.  In effect, he only completed 2 years, 9 months, and 11 days of creditable active service.  

	d.  His DD Form 214 correctly shows the date of entry as 2 December 1981.  It also correctly shows he completed 2 years, 9 months, and 11 days of creditable active service which when combined with his 5 years, 1 month, and 3 days of the prior active service he completed, add up to 7 years, 10 months, and 14 days of total creditable active service.  

	e.  He did not complete 8 years and 4 months as he contends because he had lost time that was never made good.  There is no evidence that shows he made his lost time good.  Therefore, he does not get credit for this lost time.  Additionally, although he completed basic combat training at Fort Jackson, SC, he did not enter active duty during the period covered by this DD Form 214 at Fort Jackson, SC; he did so at Fort Ord, CA, which is correctly shown on his DD Form 214.  

	f.  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.  

	g.  Nevertheless, his DD Form 214 should list his enlistment periods for which a DD Form 214 was not issued.  Since he was not issued any DD Forms 214 for his first two periods of service, item 18 of his DD Form 214 should be amended to show his reenlistment periods.

2.  With respect to his training, his DA Form 2-1 shows he completed various training courses from 1977 to 1979.  He did not complete any training during the period covered by the DD Form 214 (2 December 1981 to 26 June 1985).

3.  With respect to his awards and decorations, there is no evidence in his records and he provided none to show he was awarded any awards or decorations other than those listed on his DD Form 214.  The Army Achievement Medal and Army Good Conduct Medal orders he provides are both listed on his DD Form 214.  
4.  With respect to his character of service on the DD Form 214:

	a.  His trial by a general 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.

	b.  the length of time does not negate or erase the offenses he committed.  While his post-discharge achievements are noted, the Army has never had a policy wherein a character of service is upgraded due to passage of time.

	c.  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.

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 18 of his DD Form 214 the entry "Honorable Service "19761029 – 19800717" and "19800718 – 19811201."

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:

* Upgrade of his discharge
* Completion of 8 years and 4 months of military service
* Any military schools and/or additional awards
* He entered active duty at Fort Jackson, SC



      _______ _   _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)                                         AR20110014286



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ABCMR Record of Proceedings (cont)                                         AR20110014286



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