IN THE CASE OF:
BOARD DATE: 19 June 2014
DOCKET NUMBER: AR20130019649
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 he was discharged in January 1980 instead of January 1979.
2. The applicant states, in effect, the year of his discharge is incorrect because he served on active duty 3 years.
3. The applicant provides a DD Form 214 for the period ending 4 January 1979.
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 3 January 1977.
3. On 28 November 1978, court-martial charges were preferred against the applicant.
4. On an unknown date, he consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, due to charges preferred against him under the Uniform Code of Military Justice, which authorized the imposition of an under other than honorable conditions discharge.
5. On 20 December 1978, the separation authority approved his request for discharge.
6. Orders issued by Headquarters, 25th Infantry Division, dated 2 January 1979, show the applicant's scheduled date of discharge as 4 January 1979.
7. His DD Form 214 shows he was discharged on 4 January 1979 with his service characterized as under other than honorable conditions. It also shows he competed 2 years and 2 days of active duty service.
8. On 1 July 1980, the Army Discharge Review Board upgraded the applicant's discharge to general, under honorable conditions. He was reissued a DD Form 214 that also shows the date of his discharge as 4 January 1979.
9. Army Regulation 635-5 (Separations Documents), in effect during the applicant's active duty service, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows he requested discharge in lieu of trial by court-martial and that his request was approved on 20 December 1978.
2. Separation orders confirm the scheduled date of his discharge was 4 January 1979. Therefore, it appears the date of discharge shown on his DD Form 214 is correct.
3. The applicant failed to provide evidence showing he was discharged on
4 January 1980. As a result, there is no basis 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 that 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.
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