IN THE CASE OF:	  

		BOARD DATE:  15 October 2013

		DOCKET NUMBER:  AR20130003635 


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 DD Form 214 (Report of Separation from Active Duty (AD)) to show he served in the Army more than
7 months and 20 days.  He also requests an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he had a verbal and written contract with his Army recruiter about college credits while in service.

3.  The applicant provides no additional evidence.

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 (DEP) on 6 December 1988 for a period of 8 years.  On 27 March 1989, he was discharged from the USAR DEP for the purpose of enlistment in the Regular Army (RA).  On 28 March 1989, he enlisted in the RA for a period of
3 years and 14 weeks.

3.  On 22 January 1990, the applicant was notified that charges were pending against him for being absent without leave (AWOL) from 13 September 1989 until 17 January 1990.  He acknowledged receipt of the notification.  After consulting with counsel, he submitted a request for voluntary discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged he understood:

* if his request for discharge were accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate
* he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions
* there is no automatic upgrading or automatic review of his discharge by any Government agency or the ABCMR; that if he desired a review of his discharge he must apply to either the ABCMR or the Army Discharge Review Board (ADRB)
* that the act of consideration by either board does not imply that his discharge would be upgraded

4.  On 29 January 1990, his immediate commander recommended approval of the applicant's discharge request with an under other than honorable conditions discharge.

5.  On 9 February 1990, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge.

6.  On 21 March 1990, the applicant was discharged accordingly.  His DD Form 214 shows in:

	a.  item 12a (Date Entered AD This Period) the entry "89  03  28" (28 March 1989).

	b.  item 12b (Separation Date This Period) the entry "90  03  21" (21 March 1990).

	c.  item 12c (Net Active Service this Period) the entry "00  07  20" (7 months and 20 days).

	d.  item 29 (Dates of Time Lost During This Period) the entry "Under 10 USC 972:  890913-900116" (4 months and 3 days)

7.  There is no evidence the applicant petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished to an individual who was discharged for the good of the service.

	b.  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.  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.

9.  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 the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It states for:

	a.  item 12a, enter the beginning date of the continuous period of AD for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

	b.  item 12b, enter the Soldier's transition date; this date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for make up of time lost, or retained on active duty for the convenience of the Government.

	c.  item 12c, enter the amount of service this period, computed by subtracting item 12a from 12b; Time lost time under 10 USC 972 and non-creditable time after ETS, if any, are deducted; such time will be identified in item 29.

	d.  item 29, verify that time lost has been subtracted from item 12c if the time lost was not “made good.”  Time lost under 10 USC 972 is not creditable service for pay, retirement, or veteran's benefits; however, the Army preserves a record (even after time is made up) to explain which service between item 12a and item 12b is creditable service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  Although he served in the RA from 28 March 1989 until 21 March 1990 that equates to 11 months and 22 days of service, he accrued 4 months and 3 days of time lost due to being AWOL.  This time lost was automatically deducted from item 12c of his DD Form 214; therefore, his DD Form 214 accurately reflects his net active service.

3.  There is no evidence in the applicant's Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF) and the applicant did not provide any evidence that shows he had a verbal and written contract with his Army recruiter about college credits while in service.  It is also unknown how this issue relates to his request for discharge upgrade or correction of his active duty service time.  Therefore, there is an insufficient evidentiary basis for addressing this issue.

4.  The evidence of record shows the applicant was AWOL for 4 months and 3 days.  Having consulted with counsel, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  He was discharge in accordance with applicable law and regulation.  The type of discharge he received appropriately reflects his overall record of service.

5.  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)                                         AR20130003635



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130003635



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1