IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120007142 


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 time in service to show he completed 2 years of net active service and/or an upgrade of his general discharge.

2.  The applicant states:

	a.  He served 1 year, 7 months, and 11 days of net active service.  He received a general discharge for misconduct.  His wife had a miscarriage and he wanted to be with her.  He could not get out of the Army without missing formations and work.

	b.  He was in the Delayed Entry Program (DEP) for about 10 months.  He needs this time to qualify for a Department of Veterans Affairs (VA) loan.  He was told he could appeal for an early release and receive credit for the time.  He needs a credit of 2 years of service to be approved for a VA loan.

3.  The applicant provides a copy of his letter from the Army Review Board Agency, Congressional and Special Actions section, dated 16 March 2012.

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) DEP on 27 August 1986.  On 1 June 1987, he was discharged from the USAR DEP to enlist in the Regular Army (RA).  On 2 June 1987, he enlisted in the RA for a period of 3 years.  He completed training and he was awarded military occupational specialty 76P (materiel control and accounting specialist).  He was advanced to the rank/grade of private (PV2)/E-2 on 4 December 1987.

3.  He accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 30 November 1987 - for being disrespectful in language towards a superior noncommissioned officer (NCO) on 2 November 1987 and for failing to go at the time prescribed to his appointed place of duty on          4 November 1987
* 4 January 1988 - for failing to go at the time prescribed to his appointed place duty on 11, 12, and 13 December 1987
* 25 July 1988 - for willfully disobeying a lawful command from his superior commissioned officer to get dressed and report for work on 19 July 1988 and for failing to go at the time prescribed to his appointed place of duty on 18 July 1988

4.  On 20 January 1989, the applicant's company commander notified the applicant that action was being initiated to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations–Enlisted Separation), paragraph 14-12b for pattern of misconduct with a general discharge.  The company commander stated the reasons for the proposed action were the applicant's receipt of Articles 15 for being disrespectful to an NCO and failing to report (FTR), numerous counselings for unacceptable inspections and numerous FTRs, and disobeying a lawful command from his commissioned officer.

5.  On 20 January 1989, after consulting with counsel, the applicant acknowledged receipt of the company commander's notification.  He acknowledged he understood he could be issued a general discharge and the results of such a discharge.

6.  On 23 January 1989, the applicant's battalion commander concurred with the company commander's recommendation to separate the applicant with a general discharge.

7.  On 29 January 1989, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b for pattern of misconduct and directed the issuance of a general discharge.

8.  Accordingly, he was discharged on 13 February 1989 in the rank/grade of private (PV1)/E-1, with a general discharge.  He was credited with completing
1 year, 7 months, and 11 days of net active service and zero prior active or inactive service.  He was also credited with time lost from 14 to 15 December 1987, 18 to 19 July 1988, 6 to 27 October 1988, and 27 October 1988, for a total of 34 days.

9.  Item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Service) shows he served in the DEP from 27 August 1986 to
1 June 1987, a period of 9 months and 6 days.

10.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated a DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from active duty after completing 90 days or more of continuous active duty time. The regulation also stated for:

* Item 12a (Date Entered Active duty This Period), enter the beginning date of the continuous period of active duty for issuance of the DD Form 214
* Item 12b (Separation Date This Period), enter the Soldier's transition (separation) date of the continuous period of active duty for issuance of the DD Form 214
* Item 12c (Net Active Service this Period), enter the total amount of service (subtract 12a from 12b), less time lost

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

	b.  Paragraph 3-7a specified an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

13.  Department of Veterans Affairs "Federal Benefits for Veterans and Dependents" 2008 Edition provides the basic eligibility requirements for VA Health Care.  It provides, in pertinent part, that veterans who enlisted after September 7, 1980, or who entered active duty after 16 October 1981, must have served 24 continuous months or the full period for which they were called to active duty in order to be eligible.  This minimum duty requirement may not apply to veterans discharged for hardship, early out, or a disability incurred or aggravated in the line of duty.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant enlisted in the USAR DEP on 27 August 1986 and was discharged on 1 June 1987 for the purpose of enlistment in the RA.  He subsequently enlisted in the RA on 2 June 1987 for a period of 3 years.  He was twice punished under Article 15 for misconduct.  On 20 January 1989, his company commander initiated action to separate him for patterns of misconduct.  After consulting with counsel, the applicant acknowledged the proposed separation action and the rights that were available to him.

2.  The separation authority approved his separation action on 26 January 1989. He was discharged prior to his expiration of term of his service for misconduct - pattern of misconduct, with a general discharge.  He was credited with completing 1 year, 7 months, and 11 days of net active service with 34 days of time lost.

3.  His contentions have been noted; however, there is an insufficient evidentiary basis to support granting the requested relief for correction of his service time to show he completed 2 years of service.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel for continued service.  His administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

4.  There is no evidence to support his contention that his DD Form 214 is in error and unjust; therefore, there is no basis for correcting his time in service or upgrading is general discharge to an honorable discharge.

5.  Additionally, the ABCMR does not grant requests for correction of records 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 correction of his or her records.

6.  In view of the foregoing, there is no 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)                                         AR20120007142



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ABCMR Record of Proceedings (cont)                                         AR20120007142



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