IN THE CASE OF:	  

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120006655 


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:

	a.  correction of item 12a (Date Entered Active Duty This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty); and

	b.  an upgrade of his general discharge to honorable.
 
2.  The applicant states:

* He signed up for the delayed entry program (DEP) and wants credit for this service
* His DEP service would get him closer to the 2 years of service that is required for Department of Veterans Affairs (VA) medical benefits
* At the time of discharge he was under psychiatric care and sick 
* Do not allow those infractions which were made while he was ill to overshadow his otherwise honorable service to his country
* He was young and inexperienced with business matters
* He is still under psychiatric care and homeless 

3.  The applicant 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 was born on 9 November 1967.  His enlistment contract shows he enlisted in the U.S. Army Reserve (USAR) under the DEP on 9 July 1986.  Two days later, on 11 July 1986, he was discharged from the DEP and he enlisted in the Regular Army (RA) on 11 July 1986 for a period of 3 years.  He completed his training and was awarded military occupational specialty 13E (cannon fire direction specialist).

3.  Between 5 December 1986 and 19 January 1988, he was counseled for:

* Failure to repair
* Being unprepared for inspection
* Failure to properly display his foot gear
* Displaying a complete lack of motivation and teamwork
* Unsatisfactory performance
* Being absent from his place of duty
* Not being in the proper uniform

4.  In 1987, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order and being derelict in the performance of his duties. 

5.  On 29 December 1987, a bar to reenlistment was imposed against him.

6.  On 22 March 1988, he was convicted by a summary court-martial of missing movement formation and being absent without leave (AWOL) from 17 February to 19 February 1988.  He was sentenced to forfeit $300.00 pay for 1 month.  On 15 April 1988, the convening authority approved the sentence.   


7.  On 21 April 1988, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12b, for misconduct (patterns of misconduct).  The unit commander cited the applicant's summary court-martial, NJP, lack of motivation, substandard performance, falling asleep on radio watch, a skill qualification test score of 32, bar to reenlistment, and numerous negative counseling statements.

8.  On 21 April 1988, he acknowledged notification of the discharge action against him, declined the opportunity to consult with counsel, declined a hearing before an administrative board, and elected not to submit a statement on his own behalf.  

9.  On 3 May 1988, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

10.  On 16 May 1988, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (patterns of misconduct) with a general discharge.  He completed a total of 1 year, 10 months, and 4 days of creditable active service.  He had 2 days of lost time.

11.  His DD Form 214 shows in:

* Item 12a the entry "86  07  11" (11 July 1986)
* Item 18 (Remarks) the entry "DELAYED ENTRY PROGRAM:  NA" (Not Applicable)  

12.  There is no evidence of record which shows he was diagnosed with a mental condition prior to discharge.

13.  On 17 January 1997, the Army Discharge Review Board denied his request for an honorable discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 (military or civilian 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.  


15.  Army Regulation 635-200, 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 635-5 (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.  It establishes standardized policy for the preparation of the DD Form 214.  It states that for item 12a, enter the beginning date of the continuous period of AD for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

17.  Army Regulation 140-1 (Army Reserve Mission, Organization, and Training) provides policy guidance on the mission, organization, and training of the USAR.  It states the USAR Control Group (Delayed Entry) consists of members enlisted under Army Regulation 601-210 (Active and Reserve Components Enlistment Program).  They are in a non-pay status and will not take part in Reserve training.

18.  The DEP is defined as a program where Soldiers are assigned to the USAR Control Group (Delayed Entry) until they enlist in the Regular Army.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends his date of entry on active duty should be 
9 July 1986, his enlistment contract shows he enlisted in the USAR under the DEP on 9 July 1986.  Soldiers in the DEP are not on active duty.  Evidence shows he enlisted in the RA on 11 July 1986 which is properly shown in item 12a of his DD Form 214.  Therefore, there is insufficient evidence on which to base amending item 12a of his DD Form 214.

2.  Since he served in the DEP, the entry in item 18 of his DD Form 214 which states "DELAYED ENTRY PROGRAM:  NA" is incorrect and should be corrected to show he served in the DEP from 9 July 1986 to 10 July 1986.

3.  He contends he was young and inexperienced with business matters.  However, age is not a sufficiently mitigating factor.  He was 18 years of age when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.
4.  He contends at the time of discharge he was under psychiatric care and sick.  However, there is no evidence which shows he was diagnosed with a mental condition prior to discharge.  There is also no evidence that shows he was having mental problems in 1988 that interfered with his ability to perform his military duties or that this was the underlying cause of the misconduct that led to his discharge.  

5.  A discharge is not changed for the purpose of obtaining VA benefits.

6.  His administrative separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

7.  Although an under other than honorable conditions discharge was normally appropriate for a Soldier discharged under the provisions of Army Regulation
635-200, chapter 14, it appears the separation authority considered the applicant's total service when he directed the issuance of a general discharge.

8.  His record of service included one NJP, one summary court-martial conviction, adverse counseling statements, and 2 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable 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 deleting the entry "DELAYED ENTRY PROGRAM:  NA" from item 18 of his DD Form 214 and replacing it with the entry "DELAYED ENTRY PROGRAM:  19860709-19860710." 

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 amending item 12a of his DD Form 214 or upgrading his general discharge to honorable.  





      _______ _   _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)                                         AR20120006655



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006655



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1