BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120011132 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was an exemplary Soldier and had honorable service for the entire period of his initial enlistment obligation.  He states he committed the crime that led to his discharge 18 years ago.  He adds that clemency is warranted in his case because it is an injustice for him to continue to suffer the adverse consequences of his under other than honorable conditions discharge.

3.  The applicant provides no additional documentary evidence in support of his application.

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.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant enlisted in the Regular Army (RA) on
6 September 1990 for a period of 2 years and 21 weeks.

3.  He was awarded military occupational specialty 77W (Water Treatment Specialist) and promoted to specialist /pay grade E-4 on 1 May 1992.

4.  A DD Form 4 shows the applicant reenlisted in the RA on 30 October 1992 for a period of 2 years.  On 18 February 1993, he extended his 2-year reenlistment in the RA to a period of 3 years and 9 months.

5.  On 20 September 1994, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), based on his conviction by civil court on 16 May 1994.  The applicant was advised of his rights and the separation procedures involved.

6.  The applicant consulted with legal counsel and was advised of the rights available to him.

   a.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him.

   b.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

	c.  He waived consideration of his case by a board of officers contingent upon receiving nothing less than an under honorable conditions (general) discharge.

   d.  He also indicated that, if the separation authority refused to accept his conditional waiver, he requested consideration of his case before an administrative separation board, personal appearance before the board, and representation by counsel.
   
	e.  The applicant and his counsel placed their signatures on the document.



7.  On 8 November 1994, the separation authority disapproved the applicant's request for conditional waiver and referred his case to an administrative separation board.

8.  On 6 December 1994, the applicant was notified that a Board of Officers had been appointed to determine if he should be discharged.  He was advised of his rights, including his right to representation by counsel.

9.  On 29 December 1994, a Board of Officers convened to determine if the applicant should be discharged from the U.S. Army due to misconduct based on conviction by civil court.

	a.  The Summarized Record of Proceedings show the applicant was represented by counsel and that the applicant testified in his own behalf.  Two noncommissioned officers and two enlisted Soldiers from his unit also testified before the board.

	b.  The board found by a preponderance of the evidence that the applicant did commit misconduct based on a civil conviction for kidnapping by the First Circuit Court of the States of Hawaii.  The board recommended the applicant be discharged from the U.S. Army with an under other than honorable conditions discharge.

10.  The applicant's chain of command concurred with the board's findings and recommended approval with an under other than honorable conditions discharge.

11.  On 30 January1995, the separation authority approved the board's recommendation for discharge of the applicant and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5a, for misconduct with an under other than honorable conditions discharge.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 6 September 1990 and he was discharged on 24 February 1995 for misconduct with an under other than honorable conditions discharge.

	a.  He completed 4 years, 5 months, and 19 days of net active service.



	b.  Item 18 (Remarks) shows (in part), "Immediate Reenlistments This Period 19921030-19950224."  It does not show the period of his continuous honorable active service.

13.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the ADRB for review of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, frequent incidents of a discreditable nature with civil or military authorities, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	b.  Chapter 3, 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.

	c.  Chapter 3, 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.

15.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty and is prepared for Soldiers upon release from active duty, discharge, retirement, or control of the Active Army.  It also establishes 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 the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval 


authority documentation, separation orders, or any other document authorized for filing in the military personnel record.

	b.  Paragraph 2-1 (Preparing the DD Form 214) shows a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.

   c.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It shows for item 18, use this block for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks.

    	(1)  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates).

    	(2)  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service 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.  The applicant contends his discharge should be upgraded to an honorable discharge because he was an exemplary Soldier and had honorable service for the entire period of his initial enlistment.

2.  The applicant's administrative discharge under the provisions of Army Regulation 635-200 based on misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason and type of discharge directed were appropriate and equitable.

3.  The evidence of record shows that during the period of service under review the applicant was convicted by a civil court of kidnapping.  Thus, the applicant's record of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

4.  Records show the applicant had two separate periods of enlistment in the RA, as follows:

* enlisted on 6 September 1990; discharged on 29 October 1992
* reenlisted on 30 October 1992; discharged under other than honorable conditions on 24 February 1995

5.  He was issued a DD Form 214 for the period of service from 6 September 1990 through 24 February 1995.

6.  The evidence of record shows that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "honorable," an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment, followed by the specific periods of reenlistments.

   a.  Item 18 of the applicant's DD Form 214 does not contain such an entry.

   b.  Therefore, it would be appropriate to correct his DD Form 214 to show his continuous period of honorable active service.

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 "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19900906 UNTIL 19921029."


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 entire period of service to an honorable discharge or under honorable (general) discharge.




      _______ _ 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)                                         AR20120011132



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ABCMR Record of Proceedings (cont)                                         AR20120011132



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