IN THE CASE OF:	  

		BOARD DATE:	 10 June 2014 

		DOCKET NUMBER:  AR20130015949 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 January 1992 to show in:

* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) –

* Army Good Conduct Medal (4th Award)
* Expert Marksmanship Qualification Badge with Hand Grenade Bar

* item 14 (Military Education), in effect:

* Advanced Food Service Specialist, 2 weeks, 1983
* Jungle Operations Training Course, 4 weeks, 1984
* Food Service Specialist, 6 weeks, 1985

* item 18 (Remarks) – "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19760329 UNTIL 19890415"
* item 21 (Signature of Member Being Separated) – "MEMBER UNDER DOCTOR'S ORDERS"
* item 24 (Character of Service) – honorable
* item 29 (Dates of Time Lost During This Period) – correction of the dates based on his service ending 14 December 1980

2.  The applicant states he was under doctor's orders and he reenlisted on 14 December 1984.  In addition to his statement, he has indicated the corrections he seeks by highlighting items on the documents he provides.

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* DD Forms 214 for the periods ending 7 March 1979 and 16 January 1992
* extracts of documents from his Army Military Human Resource Record (formerly known as the Official Military Personnel File)

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 30 March 1976.

3.  He was honorably discharged on 7 March 1979 for immediate reenlistment on 8 March 1979 for a 3-year period.  His DD Form 214 for the period ending 7 March 1979 shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and Expert Marksmanship Qualification Badge with Hand Grenade Bar.

4.  Headquarters, U.S. Army Air Defense Center and Fort Bliss, Fort Bliss, TX, Permanent Orders 138-3, dated 14 August 1979, awarded the applicant the Army Good Conduct Medal (1st Award) for the period 30 March 1976 to 29 March 1979.

5.  On 12 January 1982, the applicant again reenlisted in the Regular Army for 3 years.

6.  Headquarters, 82d Airborne Division, Fort Bragg, NC, Permanent 
Orders 210-30, dated 7 December 1984, awarded the applicant the Army Good Conduct Medal (3rd Award) for the period 30 March 1982 to 29 March 1985.

7.  Headquarters, 82d Airborne Division, Fort Bragg, NC, Orders 230-10, dated 7 December 1984, show the applicant was honorably discharged effective 13 December 1984 and he reenlisted for a 3-year period effective 14 December 1984, later amended to show he reenlisted for 6 years.

8.  Headquarters, 82d Airborne Division, Fort Bragg, NC, Permanent Orders Number 2-51, dated 6 January 1988, awarded the applicant the Army Good Conduct Medal (4th Award) for the period 30 March 1985 through 29 March 1988.

9.  The applicant's records contain DA Forms 4187 (Personnel Action) showing changes in the applicant's duty status as follows:

* 13 April 1989 – present for duty (PDY) to absent without leave (AWOL)
* 15 April 1989 – AWOL to PDY
* 6 July 1989 – PDY to AWOL
* 5 August 1989 – AWOL to dropped from the rolls (DFR)
* 28 September 1989 – DFR to PDY (apprehended and returned)
* 29 September 1989 – PDY to AWOL
* 30 September 1989 – AWOL to DFR
* 14 November 1991 – DFR to PDY (surrendered to military authorities)

10.  On 22 November 1991, charges were preferred against the applicant for being AWOL for the period 29 September 1989 to 14 November 1991.

11.  On 22 November 1991, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant admitted being guilty of the charges and acknowledged:

* he understood he could be discharged under other than honorable conditions if the discharge request were approved
* he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood he could expect to encounter substantial prejudice in civilian life

12.  On 3 December 1991, the separation authority approved his request for discharge under other than honorable conditions and directed his reduction to private/E-1.

13.  On 16 January 1992, the applicant was discharged as directed.  His DD Form 214 for this period of service shows in:

* item 13 – no Army Good Conduct Medal or Expert Marksmanship Qualification Badge with Hand Grenade Bar
* item 14:

*	Food Service Specialist Course, 8 weeks, April 1979
*	Italian Headstart Course, 1 week, 1980
*	Primary Leadership Development Course, 4 weeks, 1983
*	Advanced Food Service Specialist Course, 2 weeks, 1983
*	Junior Officer's Training Course, 4 weeks, 1984
*	Basic Noncommissioned Officer Course, 6 weeks, 1985

* item 18:

*	"CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790308 TO 841214"
*	"IMMEDIATE REENLISTMENTS THIS PERIOD:  790308-841214"
*	"EXCESS LEAVE (CREDITABLE FOR ALL PURPOSES EXCEPT PAY AND ALLOWANCES) 56 DAYS 911122-920116"

* item 21 – "SOLDIER NOT AVAILABLE TO SIGN"
* item 24 – "UNDER OTHER THAN HONORABLE CONDITIONS"
* item 29 (Dates of Lost Time During This Period under Title 10, U.S. Code, Section 972):

*	890413-890414
*	890706-89-0927
*	890929-91-1113

14.  On 7 September 1993, a DD Form 215 (Correction to DD Form 214) was issued amending item 18 of his DD Form 214 for the period ending 16 January 1992 to show:

* "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 760329-841214"
* "IMMEDIATE REENLISTMENT THIS PERIOD:  760329-790307"

15.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

* item 9 (Award, Decorations, and Campaigns) – Army Good Conduct Medal (4th Award)
* item 17 (Civilian Education and Military Schools), in pertinent part:

* Advanced Food Service Specialist, 2 weeks, 1983
* Jungle Operations Training Course, 4 weeks, 1984
* Basic Airborne (Parachute) Course, 3 weeks, 1984
* “FSS BTC” (Food Service Specialist Basic Noncommissioned Officer Course), 6 weeks, 1985

16.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  His available service medical records are void of documentation showing he was under doctor's orders and he does not provide any such evidence.

18.  His records are void of orders and he does not provide any such orders awarding him the Army Good Conduct Medal (2nd Award).  Further, there is no evidence of a commander's disqualification that would have disqualified the applicant from being recommended for or awarded the Army Good Conduct Medal (2nd Award).

19.  Army Regulation 600-8-22 (Military Awards) states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of active Federal military service.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  While any record of nonjudicial punishment could be in conflict with recognizing the Soldier's service as 


exemplary, such record should not be viewed as automatically disqualifying.  However, there is no right or entitlement to the medal until the immediate commander has approved the award and the award has been announced in permanent orders.

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

	a.  Paragraph 3-5e, in effect at the time, stated the type of discharge and character of service would be determined solely by the military record during the current enlistment or period of service, plus any extensions thereof from which the Soldier is being separated.

	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.

	d.  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.

21.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214.  The regulation stated the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement or discharge.  The policy for preparing a DD Form 214 for enlisted members who were discharged for immediate reenlistment in the Regular Army ended 1 October 1979.  The itemized instructions for completing the DD Form 214 stated to enter in:

* item 12 – enter the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued
* item 13 – all decorations, service medals, campaign credits, and badges awarded or authorized for all periods of service
* item 14 – in-service training courses by title, number of weeks, and year successfully completed during the period of service covered (training courses for combat skills would not be listed)
* item 21 – when a Soldier cannot or will not sign, enter "MEMBER NOT AVAILABLE TO SIGN" or "MEMBER REFUSED TO SIGN"
* item 29 – enter inclusive dates under Title 10, U.S. Code, section 972, as well as time lost after normal expiration of term of service (this entry covers the period of service listed on the DD Form 214)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his period of continuous active duty service listed on his DD Form 214 for the period ending 16 January 1992 is incorrect and should be 29 March 1976 to 15 April 1989.  His records show he was issued DD Forms 214 covering his periods of service from 30 March 1976 through 7 March 1979 and from 8 March 1979 through 16 January 1992.  Issuance of a DD Form 214 for enlisted members who were discharged for immediate reenlistment in the Regular Army ended on 1 October 1979.  Therefore, his contention is without merit.

2.  He contends he had honorable service from 29 March 1976 to 15 April 1989.  His service was characterized as honorable for the period 30 March 1976 to 7 March 1979.  He reenlisted on 8 March 1979 and 14 December 1984.  Since the issuance of a DD Form 214 was no longer in effect for immediate reenlistments in the Regular Army, his DD Form 214 for the period of service ending 16 January 1992 correctly shows his service was characterized from the date of the last reenlistment.  The entry for continuous honorable active service, which is entered via a DD Form 215 in the Remarks section of his DD Form 214, defines his last period of honorable service.  Therefore, this contention is without merit.

3.  His records contain orders issuing him the Army Good Conduct Medal for the 1st Award, 3rd Award, and 4rd Award.  There is no record of a commander's disqualification for the period 30 March 1979 to 29 March 1982, the period he would have been awarded the 2nd Award.  Therefore, it is presumed the order is 


missing and he is entitled to correction of his DD Form 214 for the period ending 16 January 1992 to show award of the Army Good Conduct Medal (4th Award).

4.  With regard to the applicant's signature in item 21 of his DD Form 214 for the period ending 16 January 1992, the entry shown on his DD Form 214 complies with regulatory guidance as he was unavailable to sign because he was on excess leave; therefore, he is not entitled to correction of this item to show he was on doctor's orders.

5.  Records show the applicant was awarded the Expert Marksmanship Qualification Badge with Hand Grenade Bar; therefore, he is entitled to correction of his DD Form 214 for the period ending 16 January 1992 to show this badge.

6.  Records show the applicant completed the Jungle Operations Training Course, the Basic Airborne Course, and Food Service Specialist BTC.  However, the governing regulation for the DD Form 214 in effect at the time stated not to list training courses for combat skills and Jungle Operations Training is combat training.  Therefore, he is entitled to correction of his DD Form 214 for the period ending 16 January 1992 to show he successfully completed the Basic Airborne Course.  This DD Form 214 already shows he completed the Basic Noncommissioned Officer Course, but to prevent any confusion it would be appropriate to amend this entry to read the Food Service Specialist Basic Noncommissioned Officer Course.

7.  The time lost shown in item 29 of the applicant's DD Form 214 for the period ending 16 January 1992 coincides with his periods AWOL; therefore, he is not entitled to the request relief.

8.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The records show he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.

9.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and there is no documentary evidence of mitigating circumstances that would warrant changing the character of his service.  Therefore, he is not entitled to an honorable or a general discharge.



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:

	a.  adding award of the Army Good Conduct Medal (4th Award) and Expert Marksmanship Qualification Badge with Hand Grenade Bar to item 13 of his DD Form 214 for the period ending 16 January 1992;

	b.  adding the following courses to item 14 of his DD Form 214 for the period ending 16 January 1992:

*	Basic Airborne Course, 3 weeks, 1984
*	Food Service Specialist Basic Noncommissioned Officer Course, 6 weeks, 1985 (in lieu of the Basic Noncommissioned Officer Course, 6 weeks, 1985)

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 discharge, changing his period of honorable service, listing completion of the Jungle Operations Training Course, listing a different reason for the lack of his signature, and adjusting his dates of lost time on his DD Form 214 for the period ending 16 January 1992.



      _____________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)                                         AR20130015949



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ABCMR Record of Proceedings (cont)                                         AR20130015949



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