IN THE CASE OF:	  

		BOARD DATE:  5 December 2013

		DOCKET NUMBER:  AR20130006112 


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 separate DD Form 214 (Certificate of Release or Discharge from Active Duty) for his first period of service. 

2.  The applicant states he completed two periods of service.  He first enlisted on 28 February 1978 and he was discharged on 27 August 1981.  This period of service was honorable.  He reenlisted as an E-5 and he was ultimately discharged under other than honorable conditions.  The only discharge in his file is characterized as under other than honorable conditions.  This characterization precludes him from receiving veteran benefits for his first period of honorable service. 

3.  The applicant provides his DD Form 214. 

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 records show he enlisted in the Regular Army on 28 February 1978 and he held military occupational specialty 11C (Indirect Fire Infantryman).  

3.  He was discharged on 27 August 1981 for the purpose of immediate reenlistment in the Regular Army.  No DD Form 214 was prepared for this period of service. 

4.  He reenlisted in the rank of specialist four/E-4, at Fort Carson, CO, on 
28 August 1981.  He was promoted to sergeant/E-5 in November 1981.  

5.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 3 March 1983, being absent without leave (AWOL) from 3 to 28 January 1983
* 26 April 1983, being AWOL from 4 to 7 April 1983

6.  On 6 June 1983, he departed his unit in an AWOL status and on 5 July 1983, he was dropped from the rolls as a deserter.  He surrendered to military authorities at Fort Stewart, GA, on 9 January 1984.  

7.  On 17 January 1984, court-martial charges were preferred against him for one specification of being AWOL from 6 June 1983 to 9 January 1984. 

8.  On 18 January 1984, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;
	c.  he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and

	d.  he stated that under no circumstances did he desire further rehabilitation or to perform further military service.

9.  On 27 January and 6 February 1984, his intermediate and senior commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.

10.  On 28 February 1984, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 9 March 1984, he was discharged accordingly.

11.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 5 years, 4 months, and 11 days of total active service with lost time from 3 to 27 January 1983, 4 to 6 April 1983, and 6 June 1983 to 8 January 1984.  This form also shows in:

* Item 12a (Date Entered AD (Active Duty) This Period) - 78-02-28
* Item 12b (Separation Period) - 84-03-09
* Item 18 (Remarks) - Immediate reenlistment this period 780228-810827

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

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary 

evidence of his or her military service.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  Item 12 shows the record of service.  Extreme care is used when completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information.  A breakdown of entries in item 12 is as follows: 

* Item 12a shows the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued
* Item 12b shows the Soldier’s transition/separation date 
* Item 18 shows, in pertinent part, mandatory entries, including a list of enlistment periods for which a DD Form 214 was not issued under the provisions of paragraph 1–4b(5); example: Immediate reenlistments this period: 761210–791001; 791002–821001.

14.  Effective 1 October 1979, military personnel who were discharged for the purpose of immediate reenlistment were no longer issued a separate DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed two periods of service.  He first enlisted in the Regular Army on 28 February 1978 and he was discharged on 27 August 1981.  He then reenlisted on 28 August 1981 and he was discharged on 9 March 1984.  He was issued one DD Form 214 that captured his active service (less lost time).

2.  Prior to 1 October 1979, the Army issued a separate DD Form 214 to military personnel who were discharged for the purpose of immediate reenlistment.  However, on 1 October 1979, this practice was discontinued.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty (emphasis added).  The applicant served continuously on active duty from 28 February 1978 through 9 March 1984.  As required by the governing regulation, he was issued one single DD Form 214 that captured his service. 

3.  Additionally, the regulation mandated an entry in item 18 of the DD Form 214 to list enlistment periods for which a DD Form 214 was not issued under the provisions of paragraph 1–4b(5) of Army Regulation 635-5.  The applicant's DD Form 214 correctly lists the entry "Immediate reenlistments this period: 780228 - 810827." 

4.  The ABCMR does not correct records solely for the purpose of establishing entitlement to other programs or benefits.  The applicant's DD Form 214 was correctly prepared and submitted in accordance with the governing regulation at the time and contains no errors.  Therefore, there is no reason to change it.  The applicant is not entitled to the 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)                                         AR20130006112



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ABCMR Record of Proceedings (cont)                                         AR20130006112



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