IN THE CASE OF:	  

		BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130021276 


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 under other than honorable conditions discharge.

2.  The applicant states:

* he went absent without leave (AWOL) after returning from Operation Desert Storm
* his military occupational specialty (MOS) was a heavy equipment operator
* due to a shortage of Army grave site support MOS personnel, they were instructed to bag and haul the deceased bodies
* this was extremely overwhelming for him
* upon returning to the United States, he could not cope with this
* they tossed the deceased bodies of adults and children as if tossing garbage to a container
* he told the command this was too much for his mind and no one would help him
* he still is having flashbacks
* he needs mental health care through the Department of Veterans Affairs (VA) 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).


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 12 October 1989 for a period of 2 years and 19 weeks.  He completed his training and was awarded MOS 62F (crane operator).  He served in Southwest Asia (SWA) from 29 September 1990 to 20 March 1991.  He was honorably discharged on 30 October 1991 for immediate reenlistment.  He reenlisted on 31 October 1991 for a period of 
3 years.  

3.  He went AWOL on 30 August 1992 and he returned to military control on 
6 December 1995.  On 8 December 1995, charges were preferred against him for the AWOL period.  Trial by special court-martial was recommended.

4.  On 11 December 1995, he consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and be given an under other than honorable conditions discharge, he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

5.  On 6 March 1996, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.
6.  On 22 March 1996, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 3 years, 1 month, and 18 days of creditable active service with 1,193 days of time lost.  Item 18 (Remarks) of his DD Form 214 shows the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE."

7.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  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.

	b.  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.

	c.  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.

9.  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.  The regulation states the mandatory entry "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE."  This information assists the State in determining eligibility for unemployment compensation entitlement. The following guidance will help determine which entry to use:


	a.  Routinely, a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service. However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.

	b.  To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment/reenlistment documents and compare the term(s) of enlistment to the net service in block 12c of the DD Form 214.  If
Soldier has completed or exceeded the initial enlistment, enter "has."  If item 12c of the DD Form 214 is less than the Soldier’s initial enlistment, enter "has not."

10.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military …service when the following conditions are met:…(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he needs mental health care through the VA.  However a discharge is not changed for the purpose of obtaining VA benefits.  

2.  Since his record of service during his last enlistment included 1,193 days of time lost, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

4.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge.

6.  Since the applicant would have been eligible for an honorable discharge on   30 October 1991, it appears that the VA is statutorily required to treat him for any conditions that arose during his first period of service.  Eligibility for veterans' benefits does not fall within the purview of the Army, however.  He should contact a local office of the VA to inform them, if necessary, of the applicable statute and request further assistance.

7.  It appears the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" in item 18 of his DD Form 214 is incorrect since he reenlisted before his initial contracted period of service.  Therefore, item 18 of his DD Form 214 should be corrected to show the entry "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE."  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" from item 18 of his DD Form 214 and replacing it with the entry "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE."

2.  The Board further determined that 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.



      ____________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)                                         AR20130021276





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ABCMR Record of Proceedings (cont)                                         AR20130021276



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