IN THE CASE OF:	

		BOARD DATE:	    23 January 2014

		DOCKET NUMBER:  AR20130007595 


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 under other than honorable conditions discharge.

2.  The applicant states he served in the Army from 4 January 1985 to 2 April 1992, he is a Gulf War veteran, and believes his discharge was due to post- traumatic stress disorder (PTSD).

   a.  He states his problems began after being in combat.  He lost his wife and did not know why.  He was diagnosed with PTSD by the Department of Veterans Affairs (VA) and he is getting treatment.

   b.  He adds that he was a stellar Soldier prior to his deployment.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 Regular Army (RA) on 4 January 1985 for a period of 3 years.  Upon completion of training he was awarded military occupational specialty 19K (M1 Armor Crewman).

3.  The applicant reenlisted in the RA on 23 July 1987 for a period of 4 years.  

4.  He received nonjudicial punishment (NJP) on two occasions for:

   a.  leaving his appointed place of duty without authority on 30 March 1988; and

   b.  wrongfully using marijuana on 4 October 1988.

5.  He served in Southwest Asia (SWA) from 20 September 1990 to 21 April 1991 and reenlisted in the RA on 15 July 1991 for a period of 4 years.

6.  On 29 January 1992, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from:

* 4 to 12 November 1991
* 19 November 1991 to 6 January 1992
* 15 to 22 January 1992

7.  On 31 January 1992, the applicant consulted with legal counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

   a.  He acknowledged he understood the elements of the offenses charged and that he was guilty of the charge against him, or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.

   b.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was given an under other than honorable conditions discharge.

	c.  He was also advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

	d.  The applicant and his counsel placed their signatures on the document.

8.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with service characterized as under other than honorable.

9.  The separation authority approved the applicant's request for discharge and directed separation with an under other than honorable conditions discharge.

10.  On 19 February 1992, the applicant underwent a mental status evaluation and separation medical examination.  The examining physician found he was qualified for separation.

11.  The applicant's DD Form 214 shows he was discharged on 2 April 1992 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.

   a.  He completed 7 years, 1 month, and 29 days of net active service this period.

   b.  Item 18 (Remarks) shows the entry, "IMMEDIATE REENLISTMENTS THIS PERIOD: 850104-870722; 870723-910714."  It does not show the period of his continuous honorable active service.

12.  On 17 April 1998, the Army Discharge Review Board determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request for upgrade of his discharge was denied.

13.  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.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance for preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the military personnel record.

	b.  Paragraph 2-1 (Preparing the DD Form 214) states a DD Form 214 will not be prepared for Soldiers discharged for immediate reenlistment in the RA.

	c.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It states item 18 is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks.

		(1)  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)."

		(2)  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."

14.  Army Regulation 635-200, in effect at the time, 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, 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 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.

	c.  Chapter 3, 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was a good Soldier prior to deploying to SWA in 1990 and the problems that led to his discharge were related to PTSD.

2.  The evidence of record shows 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).

	a.  Item 18 of the applicant's DD Form 214 does not contain such an entry.

   b.  Therefore, it would be appropriate to correct his DD Form 214 to show his continuous period of honorable active service from 4 January 1985 through 
14 July 1991.

3.  There is an absence of evidence to support the applicant's contention that he was suffering from PTSD during his military service.  He underwent a mental status evaluation and separation medical examination during his separation processing with no indication of any unfitting medical conditions and he was cleared for any administrative action deemed appropriate by the command.  Thus, the applicant's contentions are not supported by the evidence of record.

4.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

5.  The applicant was AWOL for 63 days and he completed less than 9 months of his 4-year active duty (reenlistment) service obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge or an under honorable conditions (general) discharge for the period of service.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 adding the following entry to item 18 of his DD Form 214:
   
* "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19850104 - 19910714"

2.  The Board further determined 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 upgrade of his entire period of service to either an honorable discharge or an under honorable conditions (general) 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)                                         AR20130007595



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ABCMR Record of Proceedings (cont)                                         AR20130007595



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