IN THE CASE OF:	  

		BOARD DATE:  14 January 2014

		DOCKET NUMBER:  AR20130005924 


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 the issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states the Army has no record of his service.

3.  The applicant provides copies of a U.S. Army Human Resources Command (HRC) Official Statement of Service, Verification of Military Experience and Training, Unit/Installation Clearance Record, and a Request and Authority for Leave.

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) on 7 December 1993 under the Delayed Entry Program (DEP) out of Shreveport, LA, as a high school graduate.  He elected to participate in the Montgomery GI Bill.

3.  He enlisted in the Regular Army on 20 January 1994 with a six-year active duty obligation.  He completed basic combat training (10 weeks) and advanced individual training for military occupational specialty 67T (UH-60A Helicopter Repairer) (14 weeks).  He was assigned to duty in Germany following completion of training.

4.  38th Personnel Services Battalion Orders 246-24, dated 12 November 1994, granted the applicant crewmember status.  His duty assignment is shown as B Company, 2nd Battalion, 1st Aviation Regiment, at Ansbach Army Airfield, Katterbach, Germany.

5.  A review of his pay record shows he received hostile fire/imminent danger pay from 25 October 1996 through 6 May 1997 for service in Bosnia.  

6.  His individual flight record, for the period 1 August 1997 through 12 May 1998, shows a total of 566.3 hours with 216.1 hours being listed as "Imminent Danger" hours.

7.  On 24 November 1997, the 38th Personnel Services Battalion awarded the applicant the Good Conduct Medal for the period 20 January 1994 through 
19 January 1997.

8.  On 25 September 1998, a general court-martial (GCM) found the applicant guilty of possession of drug abuse paraphernalia and use of methamphetamine.  He was sentenced to reduction in grade to private one (E-1), confinement for three months, and a bad conduct discharge (BCD).  His duty assignment at the time of his court-martial is shown as Company B, 2nd Battalion, 1st Aviation Regiment, Ansbach Army Airfield, Katterbach, Germany. 

9.  1st Infantry Division General Court-Martial Order Number 65, dated 19 December 1998, shows the general court-martial convening authority approved the findings and sentence of the court-martial and directed, except for the discharge, the sentence be executed.  He also waived the automatic forfeitures of pay and allowances and directed that direct payment of these funds be made to the applicant's daughter for six months, the maximum period allowed by law. 

10.  A Unit/Installation Clearance Record shows the applicant was confined from 25 September 1998 through 14 December 1998 by direction of a court-martial.  He completed his station clearance requirements on 30 December 1998.

11.  The applicant was placed on involuntary indefinite excess leave on 2 January 1999, pending appellate review of his court-martial sentence and the deposition of his BCD. 

12.  On 6 March 2000, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence as approved.  The court also provided a separate Notice of Court-Martial Order Correction that amended General Court-Martial Order Number 65 to add the statement deferment of forfeiture of pay and allowances was approved on 16 October 1998.  

13.  U.S. Army Field Artillery Center and Fort Sill, OK General Court-Martial Order Number 47, dated 6 June 2002, states as the period of confinement had been served and Article 71(c) having been complied with, it was directed that the BCD be executed.

14.  Neither the Record of Trial nor the applicant's Army Military Human Resource Record (AMHRR) contains any discharge orders or a DD Form 214.

15.  On 6 February 2006, HRC issued an Official Statement of Service showing:

* dates of active duty - 20 January 1994 through 19 January 2000
* character of service - uncharacterized
* a reenlistment eligibility code - 9
* reason for discharge - in lieu of trial by court-martial
* assignment to Company B, 2nd Battalion, 1st Aviation Regiment 

16.  The information in the Defense Finance and Accounting System (DFAS) data base states that the applicant was discharged on 19 January 2000 with a separation program designator of KFS (discharge in lieu of trial by court-martial under Army Regulation 635–200, chapter 10).

17.  Department of the Army Policy Message 07-04, Subject: Immediate Reenlistment Prohibition Codes (ERUP) provides the ERUP codes and priority precedence that have been approved by the Army G1.  It lists 26 numeric/alpha codes starting with a "9" but none that have just a "9."  9N is the code for a court-martial conviction when a Soldier is convicted by one or more summary, special, or general court-martial.  There is no "9" code for a discharge in lieu of court-martial.  (Note: the codes used in this regulation are not the same codes used on the DD Form 214 for a Reentry (RE) Code.)
18.  Army Regulation 600-8-22 (Military Awards) authorizes permanent award of the Basic Aviation Badge to individuals upon successful completion of advanced individual training (AIT) in career management fields (CMFs) 67 (aircraft maintenance) and 93 (aviation operations) and to Soldiers who previously completed AIT in CMF 28 (aviation communications and electronic systems maintenance).

19.  Army Regulation 600-8-22 states the National Defense Service Medal is awarded for honorable active service for any period between 2 August 1990 and 30 November 1995.

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

	a.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

	b.  Character of Service – a correct entry is vital since it affects a Soldiers' eligibility for post-service benefits.  Characterization or description of service is determined by directives authorizing separation.  The entry must be one of the following: 

* honorable (HD)
* under honorable conditions (general) (GD)
* under other than honorable conditions (UOTHC)
* bad conduct (BCD)
* dishonorable (DD)
* uncharacterized

	c..  Block 18 is to be used for mandatory entries and pertinent remarks for which another block is not specifically provided.

21.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of JJD is the appropriate code to assign to Soldiers separated by reason of a court-martial conviction.  The SPD/RE Code Cross Reference Table included in the regulation establishes RE-4 as the proper code to assign members separated with this SPD code.  

22.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  It provides the following:  

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge UOTHC is appropriate for this type of discharge.

	b.  The discharge request may be submitted after court-martial charges are preferred against the Soldier or, where required, after referral, until final action by the court-martial convening authority has been taken. 

	c.  A UOTHC discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or discharge in lieu of trial by court martial.

	d.  Service will be shown as uncharacterized only when a Soldier is separated while in an entry-level status.

	e.  A Soldier will be given a BCD or DD pursuant only to an approved sentence of a general or special court-martial.  

		(1)  The appellate review must be completed and the affirmed sentence ordered duly executed prior to separation. 

		(2)  Soldiers under sentence to an unsuspended DD or BCD will not be discharged before appellate review is completed, unless so directed by Headquarters, Department of the Army.

DISCUSSION AND CONCLUSIONS:

1.  A DD Form 214, if created, is not included in the applicant's official records.  The available records do not include a copy of any discharge order or other separation documentation except U.S. Army Field Artillery Center and Fort Sill General Court-Martial Order Number 47, dated 6 June 2002.  

2.  The available records show:

* enlistment under the DEP on 7 December 1993 
* entry onto active duty on 20 January 1994 
* he was found guilty by a general court-martial on 25 September 1998 and sentenced to a reduction in grade to private one (E-1), confinement for three months, and a bad conduct discharge (BCD)
* the general court-martial convening authority approved the all of the findings and sentence on 19 December 1998 and granted a waiver of forfeiture of pay and allowances for 6 months
* he was placed on involuntary indefinite excess leave on 2 January 1999
* the court-martial findings and sentence were affirmed on 6 March 2000 
* his BCD was ordered to be executed on 6 June 2002

3.  The information on the 2006 HRC Official Statement of Service related to the applicant's reason for discharge and characterization of service is clearly wrong and the entire form should be voided.

4.  The information reported to and contained in the DFAS data base states that the applicant was discharged on 19 January 2000 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with a characterization of service of "uncharacterized."  This information is clearly in error and needs to be corrected.

5.  The date of discharge, 19 January 2000, on the HRC Statement of Service and referred to in the DFAS data base equates to the date he would have completed his period of obligated active duty service had he not been court-martialed.  

6.  Since the appellate review was not completed until 6 March 2000 and his discharge was not directed until 6 June 2002, the applicant's date of discharge cannot be shown as 19 January 2000.  Therefore, with an absence of conflicting evidence, it is most appropriate to show the applicant was discharged effective 6 June 2002.   

7.  Due to an absence of a DD Form 214 and the significantly wrong information provided by HRC to the applicant and DFAS, it is appropriate to create a 
DD Form 214 based on the best available documentation.

8.  The applicant qualified for award of the Basic Aviation Badge based on his completion of training, assignment as a crew chief, and award of crewmember flight status and was awarded a Good Conduct Medal.  His award of the Good Conduct Medal also shows he met the eligibility criteria for award of the National Defense Service Medal for the eligibility period between 2 August 1990 and 
30 November 1995.  These awards should be included on the DD Form 214. 

9.  In addition to the information available in the records for the completion of a DD Form 214, the following block 18 entries should also be included:

* DATA HEREIN SUBJECT TO COMPUTER MATCHING WITHIN DOD OR WITH OTHER AGENCIES FOR VERIFICATION PURPOSES AND DETERMINING ELIGIBILITY OR COMPLIANCE FOR FEDERAL BENEFITS
* SOLDIER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE
* PERIOD OF DEP 19931207-19940119
* SERVICE IN BOSNIA FROM 19961025-19970506
* EXCESS LEAVE (CREDITABLE FOR ALL PURPOSES EXCEPT PAY AND ALLOWANCES) 1,221 DAYS 19990102-20020606
* DD FORM 214 ADMINISTRATIVELY ISSUED/REISSUED ON (date completed)

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:

	a.  showing the applicant was discharged effective 6 June 2002; and

	b.  issuing the applicant a DD Form 214 providing the following information 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 1
* 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) – SHREVEPORT, LA
* Item 7b (HOR) – (as shown on his enlistment contract) 
* Item 8a (Last Duty Assignment and Major Command) – B COMPANY, 2ND BATTALION, 1ST AVIATION REGIMENT, U.S. Army Europe 
* Item 8b (Station Where Separated) – U.S. ARMY FIELD ARTILLERY CENTER AND FORT SILL
* Item 9 (Command to Which Transferred) – N/A
* Item 10 (SGLI Coverage Amount) – UNK
* Item 11 (Primary Specialty) – 67T10  UH 60A  HELICOPTER REPAIRER  6 YR 9 MON
* Item 12a (Date Entered AD This Period) – 1994  01  20
* Item 12b (Separation Date This Period) – 2002  06  06
* Item 12c (Net Active Service This Period) – 0007  01  27
* Item 12d (Total Prior Active Service) – 0000  00  00
* Item 12e (Total Prior Inactive Service) – 0000  00  00
* Item 12f (Foreign Service) – 0005  03  11
* Item 12g (Sea Service) – 0000  00  00
* Item 12h (Effective Date of Pay Grade) – 1998  12  19
* Item 13 (Decorations, Medals, Badges, Citations, and Campaigns Ribbon Awarded or Authorized) – GOOD CONDUCT MEDAL//NATIONAL DEFENSE SERVICE MEDAL//BASIC AVIATION BADGE//NOTHING FOLLOWS
* Item 14 (Military Education) UH60A HELICOPTER REPAIR   14WK  1994//NOTHING FOLLOWS
* 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 –

* DATA HEREIN SUBJECT TO COMPUTER MATCHING WITHIN DOD OR WITH OTHER AGENCIES FOR VERIFICATION PURPOSES AND DETERMINING ELIGIBILITY OR COMPLIANCE FOR FEDERAL BENEFITS
* SOLDIER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE
* PERIOD OF DEP 19931207-19940119
* SERVICE IN BOSNIA FROM 19961025-19970506
* EXCESS LEAVE (CREDITABLE FOR ALL PURPOSES EXCEPT PAY AND ALLOWANCES) 1,221 DAYS 19990102-20020606
* DD FORM 214 ADMINISTRATIVELY ISSUED/REISSUED ON (date completed)

* Item 19a (Mailing Address After Separation) – (as shown in his ABCMR request)
* Item 19b (Nearest Relative) – UNK
* Item 20 (Member Requests Copy 6 Be Sent to Director of Veterans Affairs) – CA
* Item 21 (Signature of Member Being Separated) – SOLDIER NOT AVAILABLE TO SIGN
* Item 22 (Official Authorized to Sign) – (as appropriate)
* 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) – SENTENCE OF COURT-MARTIAL
* Item 29 (Dates of Time Lost During This Period) – 19980925-19981214
* 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)                                         AR20130005924



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ABCMR Record of Proceedings (cont)                                         AR20130005924



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