IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130009837 


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:

	a.  an upgrade of his discharge under other than honorable conditions to honorable; and

	b.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he honorably completed his first full term of service in item 18 (Remarks).

2.  He states he completed his first 4 years of service honorably and reenlisted on 3 December 1993; however, his DD Form 214 shows he did not complete his first full term of service.

3.  He states his discharge was inequitable because it was based on one isolated incident in 51 months of service and he had not been the subject of any other adverse actions.  He was held by civilian authorities until he paid his debt to society.  During his second enlistment, several incidents occurred that led to him making poor decisions.

	a.  He was involved in a train wreck that he thought would end his military career and eventually did.  With no insurance, and having been charged with driving under the influence of alcohol, he thought he would be discharged.  He had just reenlisted and didn't want the incident in his military records.  He did not report it and managed to hide it from his unit for several months.  The strain affected his career.  As a result of what he had seen in the theater of war and the train wreck, everything imploded.  He began to get in trouble and was eventually reduced to private first class/E-3.

	b.  He was later reduced to private/E-1.  That is when he and a buddy decided to be absent without leave (AWOL).  They went to North Carolina and returned for his buddy's court date.  He went to court with his buddy and the buddy was immediately picked up.  His buddy told him to take his truck and go instead of turning himself in, which he did.

	c.  While he was on the run, he pawned a gun that belonged to a friend and he was arrested.  He was confined in a county jail and then transferred to another county and charged with the unauthorized use of a vehicle.  His buddy had to press charges to get his truck out of impound.  He was later charged with theft of a firearm.  The other friend had to press charges to get his gun out of the pawn shop.  He was incarcerated for a total of 9 months and he was not allowed to continue his military career.  He regrets this every day.

4.  He states he has since moved on and had a productive life.  He has an impressive work history and he has stayed with companies for long periods of time.  He spent 8 1/2 years in a volunteer fire department and he has supported his community on several occasions.  He has overcome the things he did at an early age and he has made better decisions with age.  He hopes to become eligible for benefits because he has been diagnosed with diabetes and has several other symptoms that he believes are related to Gulf War Syndrome.

5.  He provides:

* DD Form 214
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* two letters of commendation
* résumé

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.  On 27 June 1990, the applicant enlisted in the Regular Army for a period of 4 years.  After completing initial entry training, he was awarded military occupational specialty 13F (Fire Support Specialist).

3.  On 3 December 1993, he reenlisted for a period of 4 years.

4.  A DD Form 616 (Report of Return of Absentee), dated 22 January 1995, shows he:

* was reported AWOL on 26 September 1994
* returned to military control on 21 January 1995 from a county jail in Texas

5.  A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) shows he was AWOL again on 24 January 1995.

6.  A DD Form 458 (Charge Sheet), dated 24 February 1995, shows he was charged with being AWOL from 26 September 1994 to 21 January 1995 and from 24 January 1995 through a date not shown.

7.  A DD Form 616, dated 28 March 1995, shows he returned to military control on 23 March 1995 after being apprehended by civilian authorities for "theft of a firearm, theft over $1,500 under $20,000, and insufficient checks."

8.  The complete facts and circumstance of his discharge processing are not available for review.  However, he provides a DD Form 214 showing he was discharged in lieu of trial by court-martial on 15 November 1995 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  His service was characterized as under other than honorable conditions.

9.  He completed 4 years, 5 months, and 26 days of net active service during this period and he had lost time from 26 September 1994 to 21 January 1995 and from 24 January to 16 August 1995.  Item 18 of his DD Form 214 contains the following pertinent entries:

* "IMMEDIATE REENLISTMENTS THIS PERIOD-- 19931203-19971202"
* "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE"

10.  Item 18 of his DD Form 214 does not contain an entry documenting continuous honorable active service.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  He provided:

* two letters commending his work as a vendor to a home builder and his service as a member of a volunteer fire department for approximately 8 1/2 years
* his résumé showing he has been steadily employed since his discharge

13.  Army Regulation 635-200 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 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.

	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.  

14.  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 preparation of the DD Form 214.  The instructions for item 18 state:


	a.  The following statement is a mandatory entry:  "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE."  This information assists the State in determining eligibility for unemployment compensation entitlement.  Routinely, a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.  If the Soldier has completed or exceeded the initial enlistment, enter "HAS."

	b.  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 for which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."  Then, enter the specific periods of reenlistments.

DISCUSSION AND CONCLUSIONS:

1.  His records do not include the complete facts and circumstances surrounding his discharge.  However, his records show he was charged with being AWOL during two periods, offenses for which a court-martial could have sentenced him to a punitive discharge, and his DD Form 214 confirms he was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

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

4.  His employment history and the letters of commendation he provided were carefully considered.  While it appears that there have been no problems with his post-service conduct, this alone is insufficient to mitigate the seriousness of the misconduct he engaged in after he reenlisted.  Based on his record of indiscipline, his service subsequent to his reenlistment clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The evidence supports his request for the addition of an entry in item 18 of his DD Form 214 to show he honorably completed his first full term of service.  Based on the available evidence, it would be appropriate to amend item 18 to show:

* he completed his first full term of service
* he had continuous honorable active service from 27 June 1990 to 2 December 1993

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 making the following deletion from and additions to item 18 of his DD Form 214:

* delete – "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE"
* add –

* "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19900627-19931202"
* "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE"

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 an upgrade of his discharge under other than honorable conditions to honorable.



      ____________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)                                         AR20130009837



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ABCMR Record of Proceedings (cont)                                         AR20130009837



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