BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130007287 


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 upgrade of his bad conduct discharge.

2.  The applicant states that his less than honorable discharge is unjustly hindering him from receiving medical benefits even though he served honorably for well over 24 months during his period of 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.  He enlisted in the Regular Army (RA) on 19 August 1981 for a period of 3 years and he held military occupational specialty 71L (Administrative Specialist).  His established date of the expiration of his term of service (ETS) was 18 August 1984.  He was promoted to the rank/grade of specialist/E-4 on 
1 March 1983.

3.  On 25 May 1983, he was assigned to Headquarters and Headquarters Company, 293rd Engineer Combat Battalion (Heavy), 18th Engineer Brigade, Germany. 

4.  On 2 July 1984, he reenlisted in the RA for a period of 3 years. 

5.  On 1 November 1984, consistent with his pleas, he was convicted by a special court-martial of one specification each of larceny of stereo equipment valued at $970.00.

6.  The court sentenced him to reduction to private/E-1, a fine of $2,382.00, 6 months of confinement, and a bad conduct discharge.  On 1 November 1984, the court modified the fine amount to $1191.00 and approved his sentence ordering that it be executed except for the part of the sentence extending to the bad conduct discharge.  He was subsequently assigned to the Personnel Control Facility (PCF), Fort Sill, OK.

7.  On 19 November 1984, the commander of Headquarters, U.S. Armor Center and Fort Knox, Fort Knox, KY directed the applicant be placed in an excess leave status pending his appellate review effective immediately upon his release from confinement.

8.  Special Court-Martial Order Number 44, dated 11 April 1985, issued by Headquarters, U.S. Army Armor Center and Fort Knox, OK, shows the applicant's sentence had been affirmed and the convening authority ordered his bad conduct discharge executed.  On 7 May 1985, he was discharged accordingly.  

9.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 chapter 3, as a result of court-martial with a bad conduct characterization of service.  He completed 3 years, 6 months, and 4 days of creditable active service with 142 days of excess leave and the period from 2 October - 16 December 1984 counted as lost time due to confinement.

10.  Item 18 (Remarks) of his DD Form 214 does not list any immediate reenlistment periods.

11.  There is no indication that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 
12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or bad conduct discharge) pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.
   
	b.  Paragraph 3-7a states 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 states 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.

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, 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.  It states to enter in item 18 a list of enlistment periods for which a DD Form 214 was not issued.  Example:  Immediate reenlistments this period:  761210–791001;
791002–821001.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant did complete his first term of service and reenlisted in the RA on 2 July 1984.  As he was convicted by a special court-martial of larceny that occurred after his initial ETS, he is entitled to correction of Item 18 of his DD Form 214 to show he had one reenlistment during the period covered from 19 August 1981 to 1 July 1984.  His service prior to his reenlistment shows he had one prior period of honorable service as one cannot reenlist without first being honorably discharged.



2.  With respect to an upgrade of his discharge, the evidence of record confirms his trial by a special court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  His claim that he had an exemplary service record for the first several years of his service is noted.  However, presumably it was taken into consideration during his court-martial/appellate process and reflected in the sentence he received.

3.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  His service during his second enlistment did not meet the criteria for an honorable or a general discharge, or any other characterization of service other than the one he received.  Therefore, he is not entitled to this portion of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X___  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant's DD Form 214 by adding the entry "IMMEDIATE REENLISTMENTS THIS PERIOD 19810819-19840701."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his bad conduct discharge.  




      _______ _ 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)                                         AR20130007287





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ABCMR Record of Proceedings (cont)                                         AR20130007287



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