IN THE CASE OF:	  

		BOARD DATE:	    15 July 2014

		DOCKET NUMBER:  AR20130019876 


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 an upgrade of his bad conduct discharge and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* item 12a (Date Entered Active Duty This Period) from 23 June 1985 to 11 November 1984
* item 12b (Separation Date This Period) from 7 September 2005 to 16 July 2004
* item 18 (Remarks) to list each period of enlistment and discharge characterization

2.  The applicant states his DD Form 214 makes it appear as if his entire military service was dishonorable.  This is not accurate.  His active duty prior to 1999 was honorable.

3.  The applicant provides no additional evidence.

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's records show he enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) on 22 August 1984.  He was discharged from the DEP on 19 November 1984 and subsequently enlisted in the Regular Army on 20 November 1984.  He was trained in and held military occupational specialty 31M (Multichannel Communications Equipment Operator).

3.  He served through multiple reenlistments on 6 August 1987, 30 April 1993, 5 January 1995, and 7 October 1997, in a variety of assignments and he attained the rank/grade of staff sergeant/E-6.  He was assigned to Fort Hood, TX.

4.  On 21 December 1999, he departed his unit in an absent without leave (AWOL) status and he was dropped from the rolls as a deserter on 20 January 2000.  He ultimately returned to military control on 3 October 2001.

5.  On 21 June 2002, he was convicted by a general court-martial of one specification of being AWOL from 21 December 1999 to 3 October 2001 and one specification of stealing government funds of a value of $100,000.00.  The court sentenced him to a bad conduct discharge, confinement for 3 years, and payment of a fine to the United States in the amount of $80,000.00.

6.  On 7 February 2003, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, Orders 196-40, dated 14 July 2004, authorize him travel at government expense and show the date of his release from confinement (mandatory supervised release) at the Regional Correctional Facility, Fort Lewis, WA, as 16 July 2004.  The special instructions state:

If upon successful completion or termination of parole, the general court-martial case has not been finalized and the individual has not been discharged from the service, service member will arbitrarily be placed on excess leave status until the appellate process is complete and all final administrative action is taken.

9.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial Order Number 140, dated 22 July 2004, shows the convening authority ordered the applicant's bad conduct discharge duly executed after completion of all required post-trial and appellate reviews.

10.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, Orders 237-0689, dated 25 August 2005, discharged him from active duty effective 7 September 2005.

11.  He was discharged on 7 September 2005.  His DD Form 214 shows he was discharged as a result of a court-martial in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with a bad conduct discharge.  His DD Form 214 shows in:

* item 12a – 1985  06  23
* item 12b – 2005  09  07
* item 12c (Net Active Service This Period) – 0016  11  10
* item 12d (Total Prior Active Service) – 0000  00  00
* item 12e (Total Prior Inactive Service) – 000  00  00
* item 18 – no periods of reenlistment
* item 24 (Character of Service) – Bad Conduct
* item 29 (Dates of Time Lost During This Period) – under Title 10, U.S. Code, section 972 – 20040716-20050907 and 20020621-20040715

12.  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.

13.  Army Regulation 635-200, 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.

14.  Army Regulation 635-200, 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.

15.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.

	a.  For item 12a, enter the beginning date of the continuous period of active duty for issuance of this DD Form 214 for which a DD Form 214 was not previously issued.

	b.  For item 12b, enter the Soldier's transition date.  This date may not be the contractual date if the Soldier is separated early, voluntarily extends or is extended for make-up of lost time, or is retained on active duty for the convenience of the government.

	c.  For item 12c, enter the amount of service performed during this period, computed by subtracting item 12a from item 12b.  Lost time under Title 10, U.S. Code, section 972, and non-creditable time after the expiration of term of service (ETS) date, if any, are deducted.  Such time will be identified in item 18.

	d.  For item 12d, enter the total amount of prior active military service, less lost time, if any, from previously-issued DD Forms 214.  If not applicable, enter "0000  00  00."

	e.  For item 12e, enter the total amount of prior inactive service, less lost time, if any, from previously-issued DD Forms 214 and/or the Enlisted Record Brief.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in this block.  However, DEP time is creditable service for completing the statutory military service obligation and will be entered in item 18.

	f.  Item 18 is used for Headquarters, Department of the Army, mandatory requirements when a separate block is not available and as a continuation for entries in selected blocks.  For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)."  However, 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 which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."  Then, enter the specific periods of reenlistments as prescribed above.

	g.  Also in item 18 for a Soldier who has excess leave status, enter "EXCESS LEAVE (CREDITABLE FOR ALL PURPOSES EXCEPT PAY AND ALLOWANCES) (specify days and period of time)."

	h.  Item 29 shows time lost under Title 10, U.S. Code, section 972.  The dates of lost time during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of lost time to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after ETS will be entered.  Time lost under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however, the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's character of service:

	a.  The applicant's trial by a general court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

	b.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

	c.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board 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.

	d.  His service during his last period of enlistment was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  He is not entitled to the requested relief.

2.  With respect to the applicant's entry and separation dates:

	a.  The applicant enlisted in the USAR under the DEP on 22 August 1984.  He remained in the DEP until 19 November 1984, a period of 2 months and 27 days (inactive duty).  He then enlisted in the Regular Army on 20 November 1984.  For unknown reasons, his DD Form 214 listed his date of entry as 23 June 1985.  Therefore, item 12a should be corrected to show 20 November 1984.

	b.  Once the appellate review was completed and the approved sentence was affirmed, Headquarters, Fort Sill, published a general court-martial order in July 2004 to execute the bad conduct discharge.  He appears to have been placed on excess leave from 16 July 2004 until his separation orders were published.  The separation orders were not issued until 25 August 2005 and ordered the applicant's discharge effective 7 September 2005.  This is the date shown in item 12b of his DD Form 214.

	c.  As for the applicant's net active service during this period and his lost time:

		(1)  Based on the corrected date of entry (20 November 1984) and the current date of separation (7 September 2005), the applicant would have completed 20 years, 9 months, and 17 days of service.  However, this period is further adjusted by subtracting his lost time.  He was AWOL from 21 December 1999 to 3 October 2001, a period of 1 year, 9 months, and 13 days.  He was also confined from 21 June 2002 to 16 July 2004, a period of 2 years and 25 days.  His total lost time is 3 years, 10 months, and 8 days.  Therefore, his net active service is 20 years, 9 months, and 17 days minus 3 years, 10 months, and 8 days, which equals 16 years, 11 months, and 10 days and is correctly shown in item 12c of his DD Form 214.

		(2)  Item 29 listed incorrect dates of lost time.  He was AWOL from 21 December 1999 to 3 October 2001 and confined from 21 June 2002 to 16 July 2004.  The current dates in item 29 list his excess leave.  Therefore, item 29 should be corrected to show the proper dates of his lost time.

	d.  He did not complete any prior active service.  Therefore, item 12d of his DD Form 214 correctly shows the entry "0000  00  00."  However, he completed 2 months and 27 days of prior inactive service prior to 1 January 1985.  Therefore, item 12e should be corrected to show the entry "0000  02  27."


3.  With respect to item 18 of the applicant's DD Form 214:

	a.  For Soldiers who previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, an entry showing the continuous honorable active service and the dates is required.  Additionally, the dates of enlistments are also required.  Therefore, he is entitled to correction of item 18 of his DD Form 214 to show the entry "CONTINUOUS HONORABLE SERVICE FROM 19841120 UNTIL 19971006."  Item 18 should also be corrected by entering the specific periods of his reenlistments.

	b.  He appears to have been placed on excess leave for administrative purposes from 16 July 2004 until his separation on 7 September 2005.  Excess leave is creditable for all purposes except pay and allowances and is entered in item 18 of the DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show his excess leave.

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:

* deleting the entry "1985  06  23" from item 12a of his DD Form 214 and replacing it with the entry "1984  11  20"
* deleting the entry "0000  00  00" from item 12e of his DD Form 214 and replacing it with the entry "0000  02  27"
* adding the following entries to item 18 of his DD Form 214 –

* CONTINUOUS HONORABLE SERVICE FROM 19841120 UNTIL 19971006
* IMMEDIATE REENLISTMENTS THIS PERIOD:  19841120-19870805, 19870806-19930429, 19930430-19950104, 19950105-19971006, AND 19971007-20050907
* EXCESS LEAVE (CREDITABLE FOR ALL PURPOSES EXCEPT PAY AND ALLOWANCES) FROM 20040716-20050907"

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
* showing his date of entry as 11 November 1984
* showing his date of separation as 16 July 2004



      _____________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)                                         AR20130019876



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ABCMR Record of Proceedings (cont)                                         AR20130019876



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