IN THE CASE OF:	  

		BOARD DATE:  22 August 2013

		DOCKET NUMBER:  AR20130000079 


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, the issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) to account for his active military service. 

2.  The applicant states, in effect, he never received the DD Form 214 that all discharged Soldiers deserve.  If he had received a DD Form 214, there would have been a possibility that he would have received an upgrade in his discharge that he hoped for.  His honorable time in the service and his accomplishments would be listed and the Army Discharge Review Board would have compared them to his mistakes. 

3.  The applicant provides:

* a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* a DA Form 1059 (Service School Academic Evaluation Report (AER))
* a DA Form 873 (Certificate of Clearance and/or Security Determination)
* nineteen certificates
* eight letters
* a résumé
* a birth certificate




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's available records show he was born on XX June 1960.  He enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) at the Los Angeles, CA, Military Entrance Processing Station (MEPS) on 23 April 1985.  He listed his home of record (HOR) as 37xx 1xx Street, Ixxxxxxxx, CA, 90303.  He was discharged from the DEP on 9 May 1985.

3.  He enlisted in the Regular Army (RA) in pay grade E-1 on 10 May 1985 for a period of 3 years.  He completed training and was awarded military occupational specialty (MOS) 31D (Telecommunications System Operator).  

4.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 20 December 1989, shows he received nonjudicial punishment for three specifications each of failing to go at the prescribed time to his appointed place of duty.  

5.  His records show he reenlisted in the RA as follows on:

* 11 February 1988, for a period of 4 years
* 27 November 1991, for a period of 3 years
* 25 May 1993, for a period of 4 years
* 26 September 1996, for a period of 6 years
* 21 November 2001, for an indefinite period

6.  His records contain a Headquarters (HQ), XVIII Airborne Corps, Saudi Arabia, certificate that shows he served in Southwest Asia (SWA) in support of Operation Desert Shield/Desert Storm from 17 January to 15 March 1991 while assigned to the 57th Signal Battalion, 3rd Signal Brigade.

7.  Permanent Orders (PO) 228-1, dated 16 August 1998, issued by the 30th Signal Battalion, Korea, awarded him the Army Achievement Medal (3rd Award) for the period 24 September 1997 to 23 September 1998.

8.  PO 26-2, undated, issued by the 3rd Signal Brigade, Fort Hood, TX, awarded him the Army Commendation Medal (4th Award) for the period 10 November to 10 December 1999.

9.  PO 132-35, dated 25 April 2000, issued by the 546th Personnel Services Battalion, Fort Hood, TX, awarded him the Army Good Conduct Medal (5th Award) for the period 9 May 1997 to 8 May 2000.

10.  His records contain four DA Forms 1059 (Service School Academic Evaluation Report (AER)), dated 5 December 1986, 8 October 1992, 15 February 2001, and 15 June 2001, respectively, showing he attended and successfully completed the following:

* Primary Leadership Development Course (PLDC) from 8 November to 5 December 1985 (4 weeks), at Camp Casey, Korea
* Basic NCO Course (BNCOC) from 5 August to 9 October 1991 (10 weeks), at Fort Gordon, GA
* Advanced NCOC (ANCOC), from 31 January 7 to 15 February 2001 (2 weeks), at Fort Gordon, GA
* Telecommunications Operations Chief Course, from 20 February to 15 June 2001 (16 weeks), at Fort Gordon, GA

11.  His records contain two certificates of training that show he successfully completed the:

* Military Operations on Urbanized Terrain (MOUT) Course from 6 to 11 July 1988 (1 week) at Fort Hood, TX
* Mobile Subscriber Equipment (MSE) Transmission System Operator Course from 21 September to 10 October 1989 (3 weeks) at Fort Hood, TX

12.  On 1 March 2001, he was promoted to the rank/grade of sergeant first class (SFC)/E7 in MOS 31W (Telecommunications Operations Chief).

13.  On 18 September 2001, he was assigned to D Company, 57th Signal Battalion, 3rd Signal Battalion, Fort Hood, TX.

14.  His records contain a:

	a.  DA Form 4187 (Personnel Action), dated 5 February 2002, wherein it shows his duty status changed on that date from present for duty to absent without leave (AWOL).

	b.  DA Form 4187, dated 6 February 2002, wherein it shows his duty status changed on that date from AWOL to present for duty.

15.  His records contain an Enlisted Record Brief (ERB), dated 11 February 2002, wherein it shows in:

	a.  Section C (Assignment Information) his duty status as "under arrest/confinement."

   b.  Section D (Overseas Service) that he completed the following overseas service tours in:

* Korea, from 19 December 1985 to 12 December 1986 (11 months, 24 days)
* Germany, from 27 August 1993 to 15 October 1995 (2 years, 1 month, 19 days)
* Korea, from 28 September 1997 to 25 October 1998 (1 year, 28 days)

	c.  Section E (Awards and Decorations) that he was awarded the:

* Army Commendation Medal (4th Award)
* Army Achievement Medal (3rd Award)
* Driver and Mechanic Badge
* Kuwait Liberation Medal (Saudi Arabia)
* Kuwait Liberation Medal (Kuwait)
* Southwest Asia Service Medal with 3 bronze service stars
* Overseas Service Ribbon (3rd Award)
* Army Service Ribbon
* National Defense Service Medal
* Army Good Conduct Medal (5th Award)
* Noncommissioned Officer Professional Development Ribbon (with numeral 2)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

	d.  Section F (Military Education) that he successfully completed the:  

* PLDC, in 1986
* BNCOC, in 1992
* Nuclear, Biological, and Chemical (NBC) Officer Course, in 1996
* ANCOC, [in 2001]

16.  He received a general officer memorandum of reprimand (GOMOR) on 18 March 2002 from the HQ, III Corps and Fort Hood, Fort Hood, TX, Deputy Commanding General for wrongfully using cocaine.  The GOMOR stated his illegal use of drugs was detected during a command-directed urinalysis test on 4 February 2002.  The GOMOR is filed in the performance section of his Army Military Human Resource Record (AMHRR).

17.  On 8 August 2002, court-martial charges were preferred against him for one specification each of:

* being AWOL from 5 to 6 February 2002
* wrongfully using cocaine between on or about 6 January and 6 February 2002

18.  On 13 September 2002, he was convicted by a special court-martial of one specification of wrongfully using cocaine.  He was sentenced to reduction to the rank/grade of private (PVT)/E-1, confinement for 30 days, and a bad conduct discharge.

19.  He was reduced to PVT/E-1 on 13 September 2002.

20.  On 13 August 2013, by email, an official from the Defense Finance and Accounting Service (DFAS), Indianapolis, IN, verified DFAS records showed the applicant's last day of service was 12 January 2003.  His records do not contain a leave form that shows he was granted excess leave without pay beginning 13 January 2003 while waiting the final disposition of his court-martial.

21.  Special Court-Martial Order Number 8, dated 12 May 2005, issued by HQ, III Corps and Fort Hood, Fort Hood, TX, stated as the sentence had been complied with and affirmed, the bad conduct discharge would be executed.

22.  There is no evidence in the applicant's records that shows a DD Form 214 was ever completed or issued to him.

23.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, in part, states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  A Soldier placed on excess leave without pay pending completion of appellate review may be discharged without returning to a military installation when the sentence is affirmed.  When appellate review is completed and the affirmed sentence ordered executed, the appropriate discharge documents will be completed and mailed by certified mail.  If the documents are returned unclaimed as undeliverable, they will be destroyed.  Before departure on excess leave, action will be taken to complete as much of the preprocessing as is appropriate, including partial completion of DD Form 214.

24.  Army Regulation 600-8-22 (Military Awards) states the Global War on Terrorism Service Medal (GWOTSM) is authorized for award to members of the Armed Forces of the United States who participated in Global War on Terrorism operations outside of the areas of eligibility designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or Iraq Campaign Medal.  All Soldiers on active duty on or after 11 September 2001 to a date to be determined, having served 30 consecutive or 60 nonconsecutive days, are authorized award of the GWOTSM.

25.  Army Regulation 635-5 (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 preparation of the DD Form 214.  Paragraph 2-1 states a DD Form 214 will be prepared for Active Army Soldiers upon termination of active duty service by reason of administrative separation.

	a.  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 for which a DD Form 214 was not previously issued.

	b.  Item 12b (Separation Date This Period) – enter the Soldier's transition date; this date may not be the contractual date if the Soldier is separated early, voluntarily extends, is extended for makeup of lost time, or is retained on active duty for the convenience of the government.

	c.  Item 12c (Net Active Service This Period) – enter the amount of service completed during this period computed by subtracting item 12a from item 12b.  Lost time under Title 10, U.S. Code, section 972, is deducted.

	d.  Item 12f (Foreign Service) – enter the total amount of foreign service completed during the period covered in item 12c.

	e.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – lists awards and decorations for all periods of service.  Each entry will be verified by the Soldier’s records.

	f.  Item 14 (Military Education) – shows the Soldier's military education and is obtained from the ERB.  It shows formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 and includes title, length in weeks, and year completed.  This information is to assist the Soldier in job placement and counseling; therefore, training courses for combat skills are not listed.

	g.  Item 18 (Remarks) – use this block for mandatory requirements when a separate block is not available.

		1).  Mandatory entry "DATA HEREIN SUBJECT TO COMPUTER MATCHING WITH DOD OR WITH OTHER AGENCIES FOR VERIFICATION PURPOSES AND DETERMINING ELIGIBILITY OR COMPLIANCE FOR FEDERAL BENEFITS."

		2).  Mandatory entry:  "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE."  Except 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).  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.

		3)  For an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement "SERVICE IN (name of country deployed) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)."

	h.  Item 21 (Signature of Member Being Separated) – when a Soldier is discharged in absentia or physically unable to sign, enter "SOLDIER NOT AVAILABLE TO SIGN."

	i.  Item 29 (Dates of Time Lost During This Period (YYYYMMDD)) – shows time lost and is subtracted from item 12c if the lost time was not "made good."  Lost time under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits.  However, the Army preserves a record (even after time is made up) to explain which service between the date of entry on active duty (item 12a) and separation date (item 12b) is creditable service.  For enlisted Soldiers, item 29 shows inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972.
26.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for those stated reasons.  The SPD of JJD is the appropriate code for a Soldier discharged by under the provisions of Army Regulation 635-200, chapter 3 by reason of court-martial.  The reentry (RE) code of 4 is the corresponding RE code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been issued a DD Form 214 for his active duty service has been noted.  The available evidence shows the applicant entered active duty in the Regular Army on 10 May 1985.  He was convicted by a special court-martial on 13 September 2002 for wrongfully using cocaine.  His sentence included reduction to PVT/E-1, confinement for 30 days, and a bad conduct discharge.

2.  DFAS confirmed his last day of paid service was 12 January 2003.  In the absence of evidence to the contrary, it can be presumed he was granted excess leave while he appealed his sentence and he departed Fort Hood, TX, on excess leave on 13 January 2003.  There is no evidence in his records that shows he was issued a DD Form 214 after Special Court-Martial Order Number 8 was issued on 12 May 2005 directing his bad conduct discharge be executed.  Therefore, a DD Form 214 should be issued as outlined below.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a DD Form 214 for the period 10 May 1985 through 13 May 2005 and showing in:

* Item 1 (Name (Last, First, Middle)) – as shown on his enlistment contract
* Item 2 (Department, Component or Branch) – RA
* Item 3 (Social Security Number) – as shown on his enlistment contract
* Item 4a (Grade, Rate, or Rank) – PVT
* Item 4b (Pay Grade) – E-1
* Item 5 (Date of Birth) – as shown on his enlistment contract
* Item 6 (Reserve Obligation Termination date) – 0000-00-00
* Item 7a (Place of Entry Into Active Duty) – Los Angeles, CA
* Item 7b (HOR) –  as 37xx 1xx Street, Ixxxxxxxx, CA, 90303 as shown on his enlistment contract
* Item 8a (Last Duty Assignment and Major Command) – D Company, 57th Signal Battalion, 3rd Signal Brigade, FC
* Item 8b (Station Where Separated) – Fort Hood, TX
* Item 9 (Command to Which Transferred) – N/A
* Item 10 (SGLI Coverage Amount) – N/A
* Item 11 (Primary Specialty) – 31D  (Telecommunications System Operator - 15  Years 7 Months); 31W (Telecommunications Operations Chief - 1 Year 10 months)
* Item 12a (Date Entered AD This Period) – 1985-05-10
* Item 12b (Separation Date This Period) – 2005-05-13
* Item 12c (Net Active Service This Period) – 0019-11-02
* Item 12d (Total Prior Active Service) – 0000-00-00
* Item 12e (Total Prior Inactive Service) – 0000-00-00
* Item 12f (Foreign Service) – 0004-02-11
* Item 12h (Effective Date of Pay Grade) – 2002-09-13
* Item 13 (Decorations, Medals, Badges, Citations, and Campaigns Ribbon Awarded or Authorized) the:

* Army Commendation Medal (4th Award)
* Army Achievement Medal (3rd Award)
* National Defense Service Medal
* Army Good Conduct Medal (5th Award)
* Army Service Ribbon
* Kuwait Liberation Medal (Saudi Arabia)
* Kuwait Liberation Medal (Kuwait)
* Global War on Terrorism Service Medal
* Southwest Asia Service Medal with 3 bronze service stars
* Driver and Mechanic Badge
* Overseas Service Ribbon (3rd Award)
* Noncommissioned Officer Professional Development Ribbon (with numeral 2)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

* Item 14 (Military Education) adding the:

* Primary Leadership Development Course, 4 weeks, 1985
* Military Operations on Urbanized Terrain Course, 1 week, 1988
* MSE Transmission System Operator Course, 3 weeks, 1989
* Basic NCO Course, 10 weeks, 1991
* NBC Officer Course, 2 weeks, 1996
* Advanced NCO Course, 2 weeks, 2001
* Telecommunications Operations Chief Course, 16 weeks, 2001

* Item 15a (Member Contributed to Post-Vietnam Era Veterans' Educational Assistance Program) – No
* Item 15b (High School Graduate or Equivalent) – Yes
* Item 16 (Days Accrued Leave Paid) – N/A
* Item 17 (Member Was Provided Complete Dental Examination and All Appropriate Dental Services and Treatment within 90 Days Prior to Separation) – N/A
* Item 18 (Remarks) the following entries:

* PERIOD OF DELAYED ENTRY PROGRAM:  19850423-19850509
* Continuous Honorable Active Service From 19850510 Until 20011120
* IMMEDIATE REENLISTMENTS THIS PERIOD 19850510-19880210; 19880211-19911126; 19911127-19930524; 19930525-19960925; 19960926-20011120
* SERVICE IN SOUTHWEST ASIA 19910117-19910315
* 32 DAYS OF LOST TIME DUE TO AWOL/CONFINEMENT
* DATA HEREIN SUBJECT TO COMPUTER MATCHING WITHIN DOD OR WITH OTHER AGENCIES FOR VERIFICATION PURPOSES AND DETERMINING ELIGIBILITY OR COMPLIANCE FOR FEDERAL BENEFITS

* Item 19a (Mailing Address After Separation) – as 37xx 1xx Street, Ixxxxxxxx, CA, 90303 as shown on his enlistment contract
* Item 19b (Nearest Relative) – as 37xx 1xx Street, Ixxxxxxxx, CA, 90303 as shown on his enlistment contract
* Item 20 (Member Requests Copy 6 Be Sent to "CA" Director of Veterans Affairs – "RKP"
* Item 21 (Signature of Member Being Separated) – SOLDIER NOT AVAILABLE TO SIGN
* Item 23 (Type of Separation) – Discharge
* Item 24 (Character of Service) – Bad Conduct
* Item 25 (Separation Authority) – AR 635-200, Chapter 3
* Item 26 (Separation Code) – JJD
* Item 27 (Reentry Code) – 4
* Item 28 (Narrative Reason for Separation) – Court-martial
* Item 29 (Dates of Time Lost During This Period) – 20020205-20020206; 20020913-20021012
* Item 30 (Member Requests Copy 4) – Yes



      _______ _  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)                                         AR20130000079





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ABCMR Record of Proceedings (cont)                                         AR20130000079



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