IN THE CASE OF:	  

		BOARD DATE:	  30 July 2013

		DOCKET NUMBER:  AR20120022591 


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 and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show all of his awards.

2.  The applicant states his discharge should be upgraded based on his record of service.  He adds that he sustained injuries while serving in the Army and the injuries went untreated.

3.  The applicant provides a copy of a DD Form 689 (Individual Sick Slip) in support of his request.

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 8 March 1996 for a period of 8 years.  He further enlisted and entered active duty in the Regular Army (RA) on 29 March 1996 for a period of 3 years.  He was awarded military occupational specialty 19K (Armor Crewman).

3.  The applicant reenlisted in the RA on 16 April 1998 for a period of 4 years.  

4.  His DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  item 9 (Awards, Decorations and Campaigns):

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Pistol (9mm) Bar
* Expert Marksmanship Qualification Badge with Grenade Bar

   b.  item 18 (Appointments and Reductions):  he was promoted to specialist (SPC)/pay grade E-4 on 21 May 2000.

5.  Detachment B, 4th Personnel Services Battalion, Fort Carson, CO, Permanent Orders 130-11, dated 10 May 1999, awarded the applicant the Army Good Conduct Medal (1st Award) for the period 29 March 1996 to 28 March 1999.

6.  Court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 11 to 17 January 2001 and also from 20 January to 22 March 2001.

7.  The applicant consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

   b.  He indicated he did not desire a physical evaluation prior to separation.

	c.  The applicant and his counsel placed their signatures on the document.

8.  The applicant's commander recommended approval of the applicant's request for discharge with service characterized as under other than honorable conditions.

9.  The separation authority approved the applicant's request for discharge and directed he be given an under other than honorable conditions discharge.

10.  The applicant's DD Form 214 shows he entered active duty on 8 March 1996  and he was discharged on 17 December 2001 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  It also shows he completed 5 years, 7 months, and 3 days of net active service.  If further shows in:

   a.	item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized):  Army Service Ribbon;

	b.  item 18 (Remarks):  in pertinent part, "Member has completed first full term of service" (it does not show the periods of his immediate reenlistments or the period of his continuous honorable active service); and

   c.  item 29 (Dates of Time Lost During This Period):  "Under Title 10, United States Code, section 972:  20010111-20010116; 20010120-20010321."

11.  On 14 January 2009, the Army Discharge Review Board determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request for upgrade of his discharge was denied.

12.  In support of his request, the applicant provides a copy of an Individual Sick Slip, dated 8 January 2000, that shows the medical officer assigned him to quarters for 72 hours with instructions to report on 10 January 2000 for follow-up treatment at the Urology clinic.

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

   a.  Chapter 10 shows that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.



   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.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance for 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) states a DD Form 214 will not be prepared for 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 states item 18 is used 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)."


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to an honorable discharge and his DD Form 214 should be corrected to show all of his awards.

2.  The applicant enlisted the USAR on 8 March 1996 and he entered active duty (AD) on 29 March 1986.  However, his DD Form 214 shows he entered AD on
8 March 1996, which is incorrect.  In addition, this error resulted in the applicant being credited with 5 years, 7 months, and 3 days of net active service, which is also incorrect.  However, no change is being made to correct the applicant's date entered AD or net active service this period, as it would result in an unintended adverse corrective action as a consequence of his application to this board.

3.  In addition to the Army Service Ribbon, records show the applicant was awarded the Army Good Conduct Medal (1st Award), Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Pistol (9mm) Bar.  Therefore, it would be appropriate to correct his DD Form 214 to show these additional awards.

4.  The applicant provides evidence that shows he was assigned to quarters for 72 hours due to a medical condition and he was instructed to report for follow-up treatment on 10 January 2000.  Thus, his contention that his medical condition went untreated by the Army is not supported by the evidence.

   a.  The applicant elected not to undergo a physical evaluation prior to his separation on 17 December 2001.

   b.  Moreover, there is no evidence of record that shows the applicant had an unfitting medical condition at the time of his discharge.

   c.  Therefore, there is insufficient evidence to support his implied contention that an untreated physical condition led to his discharge. 

5.  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 reenlistment(s).

	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.

6.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

7.  During the period of service under review (from 16 April 1998 through
17 December 2001), the applicant was AWOL from 11 through 16 January 2001 and from 20 January through 21 March 2001, for a total of 67 days of time lost.

   a.  He elected to request discharge in lieu of being court-martialed.

   b.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or an under honorable conditions (general) discharge.

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 is 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:

   a.  adding to item 13 of his DD Form 214 the:

* Army Good Conduct Medal (1st Award)
* Expert Marksmanship Qualification Badge with Grenade Bar
* Marksman Marksmanship Qualification Badge with Pistol Bar

   b.  adding the following entries to item 18 of his DD Form 214:
   
* "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19960329- 19980415"
* "IMMEDIATE REENLISTMENTS THIS PERIOD:  19960329-19980415 AND 19980416"

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 upgrade of his entire period of service to either an honorable discharge or an under honorable conditions (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)                                         AR20120022591



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ABCMR Record of Proceedings (cont)                                         AR20120022591



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