IN THE CASE OF:	  

		BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130012778 


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, in effect, voidance of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and replacement with two separate DD Forms 214, one for each term of enlistment.

2.  The applicant states he reenlisted while he was assigned overseas and was later discharged as a result of a court-martial.  His court-martial was unlawful.  He is in need of medical care for injuries he sustained during his first enlistment.

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 enlisted in the Regular Army on 16 June 2004 and subsequently reenlisted on 2 November 2006.  He held military occupational specialty 68X (Mental Health Specialist).  The highest rank/grade he attained while serving on active duty was specialist/E-4.

3.  Headquarters, 19th Sustainment Command (Expeditionary), Korea, Special Court-Martial Order Number 2, dated 27 July 2007, shows he was convicted on 30 March 2007 of:

* one specification of being absent without leave (AWOL) from on or about 2 February 2007 to on or about 21 February 2007
* one specification of failing to go to his appointed place of duty between 30-31 January 2007
* one specification of absenting himself from his unit from on or about 4 January 2007 to on or about 22 January 2007
* two specifications of disobeying the lawful command of a superior commissioned officer
* one specification of violating a no contact order/command issued by a superior commissioned officer
* one specification of wrongfully engaging in sexual intercourse with a woman who was not his wife

4.  The court sentenced him to reduction in rank/grade to private/E-1, forfeiture of $867.00 pay per month for 7 months, confinement for 7 months, and separation from the service with a bad conduct discharge.

5.  On 27 July 2007, the convening authority approved only so much of the sentence as provided for reduction to E-1, forfeiture of $867.00 pay per month for 6 months, confinement for 7 months, and a bad conduct discharge, and, except for the part of the sentence extending the bad conduct discharge, he ordered the sentence executed.  The applicant was credited with 47 days of confinement against the sentence to confinement.

6.  The U.S. Army Court of Criminal Appeals considered the applicant's claims that his counsel was ineffective because:  (1) he pinched the applicant during the court-martial to keep him quiet; (2) he did not tell the court that the applicant's battalion commander told the applicant that it was alright to have a girlfriend even though he was married; (3) he did not tell the court the applicant was restricted, in part, due to his religion; (4) he asked the military judge to impose a lighter sentence if the applicant received a punitive discharge even though the applicant did not want a discharge; and (5) he told the applicant to lie about the facts concerning the offenses.

7.  The U.S. Army Court of Criminal Appeals determined that under the circumstances of this case, the U.S. Army Court of Criminal Appeals saw no need to order an affidavit from the applicant's counsel regarding his actions at trial, trial strategy or tactics, or order a fact-finding hearing.  The U.S. Court of Military Appeals found the appellate filings and the record as a whole compellingly demonstrated the improbability of the applicant's allegations.  On this basis, the U.S. Army Court of Criminal Appeals rejected the applicant's ineffective assistance claims.

8.  On 17 December 2007, the U.S. Army Court of Criminal Appeals considered his entire record, including the issues personally specified by the applicant.  The U.S. Army Court of Criminal Appeals held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed.

9.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, Special Court-Martial Order Number 58, dated 3 April 2008, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

10.  The applicant was accordingly discharged on 12 September 2008.  His DD Form 214 shows he was separated in accordance with chapter 3 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) with a bad conduct discharge.  He completed 3 years, 6 months, and 23 days of active service with 246 days of lost time.  Item 18 (Remarks) of his DD Form 214 shows in the entries:

* CONTINUOUS HONORABLE SERVICE:  20040616-20061101
* IMMEDIATE REENLISTMENT THIS PERIOD -- 20061102-20080912

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 5 October 2012, the ADRB denied his request and determined he was properly and equitably discharged.

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established the standardized policy for preparing and distributing the DD Form 214 and stated:

	a.  Effective 1 October 1979, DD Forms 214 are not prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army.

	b.  Paragraph 2-4h(18)(c) stated that item 18 documented remarks that are pertinent to the proper accounting of the separating Soldier's period of service.  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates.  For Soldiers who previously reenlisted without being issued a DD Form 214 and who are later 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)."  Then enter the specific periods of reenlistments as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he enlisted in the Regular Army on 16 June 2004 and subsequently reenlisted on 2 November 2006 without a break in service.  Consequently, he is not authorized separate DD Forms 214 for his initial period of enlistment and subsequent period of reenlistment because DD Forms 214 are not issued when there is no break in service.

2.  Item 18 of his DD Form 214 contains the entries "Continuous Honorable Service:  20040615-20061101" and "Immediate Reenlistment this Period:  20061102-20080912."  This sufficiently shows his initial enlistment ended honorably.

3.  Based on the foregoing, there is insufficient evidence to grant 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 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)                                         AR20130012778



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ABCMR Record of Proceedings (cont)                                         AR20130012778



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