IN THE CASE OF:	  

		BOARD DATE:	    24 April 2012

		DOCKET NUMBER:  AR20110020104 


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:

	a.  an upgrade of his under other than honorable conditions discharge;

	b.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Army Commendation Medal with "V" Device;

	c.  correction of his DD Form 214 to show his service as continuous, i.e. without breaks except for authorized leave from 13 April 1982 through 23 January 1992; and

	d.  a review of his effective date and pay grade shown on his DD Form 214.

2.  He states he was deployed to Southwest Asia (SWA) with a unit other than his original unit.  He believes his stress, experiences, and emotional problems from serving there were not considered by his original unit when he was given an under other than honorable conditions discharge.  He was issued an Army Commendation Medal with "V" Device.

3.  He provides his DD Form 214.


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 requests correction of his DD Form 214, for the period ending    23 January 1992, to show his service as continuous from 13 April 1982 through 23 January 1992 without any breaks.  This DD Form 214 already reflects this.  Therefore, this portion of his request will not be discussed further in these proceedings.

3.  His military records show he enlisted in the Regular Army on 13 April 1982.  He reenlisted on 9 April 1985 and on 21 November 1989.  The highest rank/grade he held was sergeant/E-5.

4.  On 1 December 1990, he accepted NJP for failing to go at the time prescribed to his appointed place of duty.

5.  On 10 July 1991, he accepted NJP for on two occasions failing to go at the time prescribed to his appointed place of duty.  His punishment included reduction from sergeant/E-5 to specialist/E-4.

6.  On 17 September 1991, he was charged with being absent without leave (AWOL) from on or about 5 August 1991 to on or about 10 September 1991.

7.  A review of his medical records did not reveal any evidence of treatment for stress or emotional problems related to service in SWA.  A memorandum, subject: Medical Examination for Separation shows that on 17 December 1991 he elected not to undergo a medical examination for separation from active duty.

8.  His complete discharge packet is not contained in his records.  However, his record contains a DD Form 214 that shows on 23 January 1992 he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was given an under other than honorable conditions discharge.  His DD Form 214 shows he completed 9 years, 5 months, and 3 days of active service with 4 months and 10 days time lost during this period.

9.  His DD Form 214 shows his rank as private, pay grade as E-1, and effective date of pay grade as 10 January “1991.”

10.  His DA Form 2-1 (Personnel Qualification Record) shows his last rank held as private/E-1 with a date of rank of 10 January 1992.

11.  His records do not contain any evidence that indicates he was ever awarded the Army Commendation Medal with "V" Device.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would insure a Soldier would not be coerced into submitting a request for discharge for the good of the Service.  The Soldier's written request would include an acknowledgement that the Soldier understood if his or her request for discharge was accepted, the Soldier could be discharged under conditions other than honorable.  They would also acknowledge that they had been advised and understood the possible effects of a discharge under other than honorable conditions; and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits; that they may be ineligible for many or all benefits administered by the Department of Veteran's Affairs; and that they may be deprived of their rights and benefits as a veteran under both Federal and State laws.  They would further acknowledge they understood they may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 
	c.  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.

14.  Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  The version of this regulation, in effect at the time of his separation, did not provide for entering the Soldier's characterization of service from earlier periods of enlistment served prior to immediate reenlistments in the Regular Army on the Soldier's DD Form 214.  However, the current version of the regulation prescribes that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, then enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service for which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."  Then, enter the specific periods of reenlistments as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  He twice received NJP for on three occasions failing to go at the time prescribed to his appointed place of duty.  He was charged with being AWOL.  He had a total of 4 months and 10 days of time lost.

2.  He was discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant would have voluntarily requested discharge in lieu of a trial by court-martial.

3.  While the Board does not have his discharge packet, the Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, there is no basis to upgrade his discharge to an honorable or general discharge.

4.  There is no evidence he was awarded the Army Commendation Medal with "V" Device.  As such, there is no basis for adding this award to his DD Form 214.

5.  His DA Form 2-1 shows his last rank held as private/E-1 with a date of rank of 10 January 1992.  It appears his effective date of pay grade on his DD Form 214 was transcribed in error.  As such, it would be appropriate to correct his DD Form 214 to show his effective date of pay grade as "920110."

6.  His record shows he reenlisted in the Regular Army on 9 April 1985 and on 21 November 1989 without a break in service.  While the regulation in effect at the time did not provide for showing the Soldier's characterization of service from earlier periods of enlistment served prior to immediate reenlistments in the Regular Army on the Soldier's DD Form 214, it would be in the interest of equity to apply the current standards to show his period of continuous honorable active service on his DD Form 214.  As such, his DD Form 214 should be amended by adding to item 18 the entry, "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19820413 UNTIL 19891120."

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

8.  In view of the foregoing, it would be appropriate to amend his records as shown below. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined 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 amending his DD Form 214:

	a.  to show his effective date of pay grade as "920110"; and 

	b.  adding to item 18 the entry, "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19820413 UNTIL 19891120."

2.  The Board further determined 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 upgrading his under other than honorable conditions discharge and adding the Army Commendation Medal with "V" Device to his DD Form 214.





      __________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)                                         AR20110020104



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ABCMR Record of Proceedings (cont)                                         AR20110020104



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