IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110016514 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his date of discharge as 
10 June 1990 instead of 5 October 1989.

2.  The applicant states, in effect, he did not have a break in service and he was discharged on 10 June 1990, not on 5 October 1989.  The records in his possession are not the same as what the National Archives has on record.

3.  The applicant provides:

* Letter from the Army Review Boards Agency
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United States), dated 13 April 1984
* Letter from the U.S. Army Reserve Personnel Center, dated 5 June 1990
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 on 4 February 1980.  He was discharged from the USAR DEP on
9 June 1980 and he enlisted in the Regular Army on 10 June 1980.  He completed training and he was awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Infantryman).

3.  His record contains Orders Number 58-17, issued by Headquarters, 82nd Airborne Division, Fort Bragg, NC, dated 28 March 1986, assigning him to the
5th Adjutant General Replacement Detachment, Fort Polk, LA with a reporting date of 6 June 1986.

4.  His record contains a DA Form 2-1 that was prepared and reviewed by the applicant on 18 July 1986.  Block 34 (Signature) contains the applicant's signature.

5.  The applicant's record contains DA Forms 4187 (Personnel Action) showing changes in his duty status from:

* Assigned not joined to absent without leave (AWOL), effective 7 June 1986, since he failed to report to Fort Polk
* AWOL to present for duty (PDY) on 23 June 1986 since he reported to Fort Polk
* PDY to AWOL on 14 September 1987
* AWOL to dropped from the rolls (DFR) of the Army effective 13 October 1987
* DFR to PDY at Fort Knox, KY, effective 20 June 1989, after he was apprehended by civilian authorities at Memphis, TN and returned to military control at Fort Knox

6.  On 22 June 1989, he signed a USAARMC Form 2722 (Medical Examination for Separation Statement of Option) indicating he did not desire a separation medical examination.

7.  On 26 June 1989, his command preferred court-martial charges against him for one specification of being AWOL from on or about 14 September 1987 to on or about 20 June 1989.

8.  On 26 June 1989, he signed a statement of admission of AWOL for administrative purposes after having been advised by counsel that the government had not yet received the necessary documentation or records necessary to obtain a trial by court-martial.  He was also advised that counsel could not fully advise him without these records.  He waived all defenses that might have been available to him if his counsel had been permitted to view the documents.  He knowingly, willingly, and voluntarily declared he was AWOL from 14 September 1987 to 20 June 1989.  He made this admission for administrative purposes in order to process out of the Army.  He acknowledged he was aware he might receive an under other than honorable conditions discharge, and that he understood and had been counseled about all of the legal and social ramifications of that type of discharge.

9.  On 28 June 1989, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a under conditions other than honorable discharge, and the procedure and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.

10.  In this request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  On 7 July 1989, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He directed the applicant receive an under other than honorable conditions discharge and reduction to private (PV1)/E-1.


12.  Orders 181-27, issued by Headquarters, U.S. Army Armor Center, Fort Knox, dated 19 September 1989, reassigned the applicant to the U.S. Army Transition Point, Fort Knox, effective 5 October 1989, for separation processing.  The orders state "Date of discharge unless changed or rescinded:  5 October 1989."

13.  There is no evidence of records that shows his discharge orders were amended or rescinded.

14.  The DD Form 214 that was issued at the time shows the applicant was discharged on 5 October 1989 in the rank/grade of PV1/E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of court-martial, with a character of service of under other than honorable conditions.  This form further confirms he completed 7 years, 6 months, and 4 days of creditable active service with
659 days of time lost due to AWOL.

15.  His records contain a DA Form 1506 (Statement of Service-for Computation of Length of Service for Pay Purposes).  This form, signed by the applicant, dated 23 February 2005, shows he served in the Army from 4 February 1980 to
5 October 1989.

16.  The applicant provides:

	a.  Pages 1, 2, and 4 of a DA Form 2-1, prepared and reviewed on 10 June 1990 and appears to contain the applicant's signature.  It also appears this form was constructed after his separation and significantly differs from the
DA Form 2-1 that is contained in his official military personnel file (OMPF).  The form provided by the applicant indicates he enlisted in the USAR and attained the rank/grade of master sergeant (MSG)/E-8 with an effective date of "061009" and a date of rank of "061188."

	b.  A 1st Endorsement, subject:  Orders 90-401, issued by Headquarters, U.S. Army Support Command, dated 5 June 1990, that states "Because you have no Reserve status, you are discharged from the Regular Army instead of released from active duty.  You are not assigned to the U.S. Army Reserve Control Group; this discharge does not affect your status in the ARNG (Army National Guard).  Your discharge from the Regular Army is effective 9 June 1990.  You currently do not have a Reserve obligation."  The referenced original order is not contained in the applicant's record and he did not provide a copy. 


17.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Enlisted Record Brief, enlistment/ reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the OMPF.

   b.  Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214.  Item 12 states to use extreme care in completing this block since post-service benefits, final pay, retirement credit, etc. are based upon the information contained herein.  Item b states enter the separation date this period.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Records show the applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

2.  He was issued discharge orders on 19 September 1989 ordering his discharge effective 5 October 1989 unless his discharge orders were emended or rescinded.  There is no evidence he was issued any amendment orders to change his discharge date.  He was ultimately discharged on 5 October 1989, as reflected on his DD Form 214.

3.  It is unclear why he was issued an endorsement to a previously-issued USAR order informing him that his discharge from the Regular Army was on 9 June 1990 vice 5 October 1989.  There is no evidence of record and he did not provide any corroborating evidence that shows he was retained in the Regular Army beyond 5 October 1989.

4.  In view of the foregoing, there insufficient evidentiary basis for granting the applicant's requested relief.
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)                                         AR20110016514



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ABCMR Record of Proceedings (cont)                                         AR20110016514



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