IN THE CASE OF:	  

		BOARD DATE:	  20 August 2013

		DOCKET NUMBER:  AR20130001110 


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 an upgrade of his general discharge under honorable conditions to honorable.  He also requests correction of the entries in item 19a (Mailing Address after Separation) and item 19b (Nearest Relative) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he is rated as 70-percent disabled due to service-connected disabilities and he is considered 100-percent disabled.

	a.  He states his current address is Post Office Box XXX, Eastover, SC  29044.

	b.  He states he divorced Sharon D. F____.  He then married Stephanie L. A____ and she is enrolled in the Defense Enrollment Eligibility Reporting System (DEERS).

3.  The applicant provides a copy of his DD Form 214 and two statements 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.  The applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted in the U.S. Army Reserve (USAR) on 21 November 1981 for a period of 6 years and he subsequently enlisted in the Regular Army (RA) on 14 July 1982 for a period of 3 years.

3.  He was awarded military occupational specialty 31R (Multichannel Transmission System Operator/Maintainer).

4.  The applicant reenlisted in the RA on 13 May 1985.

	a.  He served in Southwest Asia from 30 August 1990 to 28 March 1991.

	b.  He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 February 1993.

	c.  His last reenlistment in the RA was on 22 February 1995 for a period of 6 years.

5.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet), separation packet, or his originally-issued DD Form 214 pertaining to his discharge on 2 February 1996.

6.  On 8 March 2007, the Army Discharge Review Board (ADRB) determined the reason for the applicant's discharge was proper and equitable.  However, the Board also determined the overall length and quality of the applicant' service, including his combat service and the time that had elapsed since his discharge, mitigated the discrediting entries in his service record.  The ADRB granted partial relief in the form of an upgrade of the characterization of service to general under honorable conditions with restoration of grade (SSG/E-6).  The ADRB voided the originally-issued DD Form 214 and a new DD Form 214 was reissued to reflect the ADRB decision.  (A copy of the voided DD Form 214 is in the ADRB file.)

7.  The applicant's reissued DD Form 214 erroneously shows he entered active duty on 21 November 1981 and he was discharged on 2 February 1996 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial with an under honorable conditions (general) character of service.  He completed 14 years, 1 month, and 20 days of net active service.  His DD Form 214 further shows in:

	a.  item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) the:

* Army Commendation Medal
* Army Achievement Medal
* Army Good Conduct Medal (4th Award)
* National Defense Service Medal
* Southwest Asia Service Medal with two bronze service stars
* Noncommissioned Officer Professional Development Ribbon with Numeral 2
* Army Service Ribbon
* Overseas Service Ribbon (4th Award)
* Expert Marksmanship Qualification Badge with Rifle Bar

	b.  item 29 (Dates of Time Lost During This Period):  "SEE BLOCK 18";

	c.  item 18 (Remarks), in pertinent part:

* continuous honorable active service from 21 November 1981 through 21 February 1995
* "BLOCK 29:  UNDER 10 USC 972 [Title 10, U.S. Code, section 972]:  19951222-19951230; 19960103-19960104; 19960123-19960202 [22 through 30 December 1995, 3 through 4 January 1996, and 23 January through 2 February 1996]"

	d.  item 19a:  Route 1, Box XXX, Coward, SC  29530; and

	e.  item 19b:  Sharon D. F____, same as item 19a.

8.  The applicant provides the following documents:

	a.  two Department of Veterans Affairs (VA) letters, dated 21 November 2012, showing the applicant was rated as 70-percent disabled effective 29 October 2008 due to service-connected disabilities, he is considered 100-percent disabled, and he is entitled to disability compensation.  It also shows his character of service in the Army as follows:

* honorable from 14 July 1982 through 21 February 1995


* under honorable conditions from 22 February 1995 through 2 February 1996

	b.  a State of South Carolina, County of Florence, divorce decree showing the applicant and Sharon D. F____ were granted a divorce on 2 February 2010;

	c.  a State of South Carolina marriage license and certificate showing the applicant and Stephanie L. A____ were married on 19 February 2010; and

	d.  a DD Form 1172-2 (Application for Identification Card/DEERS Enrollment) showing the applicant enrolled Stephanie L. A____ in DEERS effective 21 November 2012.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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 for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  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.

10.  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.  The purpose of a separation document is to provide the individual with documentary evidence of his or her military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.

	a.  The source documents for entering information on the DD Form 214 in effect at the time of the applicant's discharge would be the Personnel Qualification Record, Officer Record Brief, enlistment/ reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

	b.  Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214.  It shows for:

		(1)  item 19a, obtain from the Soldier; advise the Soldier that this must be a permanent address; and

		(2)  item 19b, obtain from the Soldier the name and address of a relative (permanently located) who will know the location and address of the Soldier at all times.  If the Soldier does not have a relative in this category, then the name of a close friend whom the Soldier keeps informed of his/her location and address.  If this address is the same as item 19a, enter the relative/friend's name and the entry "address same as block 19a."

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge under honorable conditions should be upgraded to an honorable discharge and that items 19a and 19b of his DD Form 214 should be corrected.

2.  The evidence of record shows the applicant enlisted in the USAR on 21 November 1981 and subsequently enlisted in the RA and entered active duty on 14 July 1982.

	a.  His DD Form 214 shows he entered active duty on 21 November 1981, which is incorrect.

	b.  The regulatory guidance states 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).  Item 18 of the applicant's DD Form 214 contains such an entry and, in fact, also includes the period of his service in the USAR.  Thus, notwithstanding this administrative error, the continuous period of active duty service is shown on the DD Form 214.

	c.  However, no change is being made to correct the date he entered active duty or the beginning date for his honorable service as it would result in an unintended adverse corrective action as a consequence of his application to this Board.

3.  The evidence of record shows the applicant elected to request discharge in lieu of trial by court-martial.  He was discharged accordingly on 2 February 1996.

4.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, in the absence of evidence to the contrary, the type of discharge directed is presumed to have been, and still is, appropriate.

5.  The available military service records were considered, including the applicant's period of service in Southwest Asia, his awards and decorations, and his time lost (totaling 22 days during the period under review).  In addition, the rationale, recommendations, and determination of the ADRB were considered.  In view of all of the foregoing, the applicant's service during the period under review (i.e., from 22 February 1995 through 2 February 1996) did not meet the standards of acceptable conduct and performance of duty for Army personnel and therefore he is not entitled to an honorable discharge.  Moreover, the applicant offers insufficient evidence to support an upgrade of his discharge.

6.  The regulatory guidance states the DD Form 214 provides the individual with documentary evidence of his or her military service at the time of separation.  It also states that information for items 19a and 19b of the DD Form 214 will be obtained from the Soldier.

	a.  The applicant was discharged on 2 February 1996.

	b.  On 8 March 2007, the ADRB approved an upgrade of the characterization of the applicant's service with restoration of his grade and reissued him a DD Form 214.  The entries in items 19a and 19b were based on the entries for those same items in the previously-issued (voided) DD Form 214.

	c.  The evidence of record shows the applicant divorced Sharon D. F____ and he married Stephanie L. A____ in February 2010.  Both of these civil actions occurred after the date of his discharge.

	d.  Thus, except for the corrections directed by the ADRB, the DD Form 214 issued to the applicant by the ADRB reflects the information that was recorded on the original DD Form 214 that was issued to him on the date of his discharge.

	e.  Therefore, there is insufficient evidence to support correction of items 19a and 19b of the applicant's DD Form 214.

7.  In view of all 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 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)                                         AR20130001110



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ABCMR Record of Proceedings (cont)                                         AR20130001110



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