IN THE CASE OF:  

		BOARD DATE:  :  9 April 2014

		DOCKET NUMBER:  AR20130015342


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his period of honorable service and/or upgrade of his bad conduct discharge (BCD).

2.  The applicant states:

* his record is in error because it does not accurately describe his service
* he received an honorable discharge for his service from 1980-1983
* he reenlisted in 1983 and then later, he received a BCD
* prior to his discharge, he served over 5 years under honorable conditions
* his prior honorable service should be acknowledged or his BCD should be upgraded to an [under] other than honorable [conditions] discharge

3.  The applicant provides:

* a self-authored statement
* a copy of his DD Form 214
* a copy of his Certificate of Promotion
* DD Form 256A (Honorable Discharge Certificate), dated 2 October 1983
* a copy of a letter of congratulations from Major General Bxxxxx, given in recognition of his reenlistment on 3 October 1983
* his DA Form 2A (Personnel Qualification Record – Part I)
* his DA Form 2-1 (Personnel Qualification Record – Part II)


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 6 March 1980, the applicant enlisted in the Regular Army.  He completed initial entry training and was awarded military occupational specialty 91B (Medical Specialist).  The highest rank/grade he attained while serving on active duty was specialist five (SP5)/E-5.

3.  On 2 October 1983, he was honorably discharged for the purpose of immediate reenlistment in the Regular Army.

4.  On 3 October 1983, he reenlisted in the Regular Army.

5.  On 9 August 1985, before a special court-martial at Fort Sam Houston, TX, he pled guilty to, and was convicted of:

* a single specification of Charge I, for violating Article 121 of the Uniform Code of Military Justice (UCMJ), larceny of private property in excess of $100
* a single specification of Additional Charge I, for violating Article 86 of the UCMJ, failure to repair
* a single specification of Additional Charge II, for violating Article 91 of the UCMJ, disobeying a lawful order

6.  On 9 October 1985, the court sentenced him to reduction to the rank/grade of private/E-1, forfeiture of $413.00 pay per month for 3 months, confinement for     3 months, and discharge from the Army with a BCD.

7.  On 9 October 1985, the convening authority approved his sentence and, except for the BCD, ordered it executed.  The applicant was confined at the Installation Detention Facility, Fort Hood, TX.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

8.  The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial.  The U.S. Court of Military Appeals denied his petition for review.

9.  Special Court-Martial Order Number 2, issued by the U.S. Army Health Services Command, Fort Sam Houston, TX, on 13 March 1986, shows that after completion of all required post-trial and appellate reviews, the BCD, as ordered by Special Court-Martial Order Number 12 (Headquarters, U.S. Army Health Services Command, Fort Sam Houston, TX) on 9 October 1985, was ordered duly executed.

10.  On 27 March 1986, the applicant was discharged pursuant to his court-martial.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct character of service.  His        DD Form 214 further shows:

   a. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) he was awarded the Army Good Conduct Medal.

   b. Item 18 (Remarks) of his DD Form 214 the entry "Reenlistment this period: 800306 – 831002; 831003 – 860327."

11.  He provides:

* a self-authored statement in which he describes his success in life following his discharge and the circumstances that led to his request to the Board for relief
* numerous documents that highlight his honorable service prior to this discharge

12.  Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect during the applicant's period of service, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army and was the governing regulation applicable to the applicant's issues concerning the proper notation of his prior honorable service on his DD Form 214.  Paragraph 1-4b(5) of the version in effect at the time stated that a DD Form 214 would not be prepared for enlisted Soldiers who were discharged for immediate reenlistment in the Regular Army.

13.  Army Regulation 635-8 (Separation Processing and Documents) replaced Army Regulation 635-5.  This regulation prescribes Department of the Army policy and procedural guidance relating to transition management.  Paragraph   5-6r states that item 18 documents the remarks that are pertinent to the proper accounting of the separating Soldier's period of service. 

   a. It provides that 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.  

   b. For Soldiers who have 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)."  

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

   a. 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.

   b. 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.

   c. Paragraph 3-7c provides that an under other than honorable conditions discharge is an administrative separation from the Army under conditions other than honorable.  It may be issued when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Army, or when the reason for separation is based upon one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Army.

   d. Paragraph 3-10 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.
15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he enlisted in the Regular Army on 6 March 1980 and reenlisted on 3 October 1983 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, on the date of his reenlistment, DD Forms 214 were not issued upon reenlistment when there was no break in service.

2.  Item 18 of his DD Form 214 contains the entry "Reenlistment this period: 800306 – 831002; 831003 – 860327."  The evidence of record reveals he reenlisted within the prescribed regulatory time frames and was awarded the Army Good Conduct Medal (1st Award) for his initial term of service.  

3.  It is reasonable to conclude his initial period of service was honorable, given his award of the Army Good Conduct Medal and his immediate commander's recommended approval of his request for reenlistment.  Accordingly, as a matter of equity, item 18 of his DD Form 214 should be corrected to show his period of continuous honorable active service.
  
4.  With respect to his request for an upgrade of his BCD, the evidence of record shows he was given a bad conduct discharge pursuant to an approved sentence by a special court-martial, which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

5.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

6.  A BCD was an appropriate sentence for his offenses.  He has failed to provide sufficient evidence to justify a change from a punitive to an administrative characterization.  Therefore, a change from a BCD to an under other than honorable conditions discharge is not warranted in this case and he is not entitled to 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 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 amending item 18 of his DD Form 214 to add the entry, "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19800306 UNTIL 19831002."

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 upgrading 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)                                         AR20130015342



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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