BOARD DATE:	  17 December 2014

		DOCKET NUMBER:  AR20140007039 


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 entry date from 27 February 1979 to 4 August 1976 and an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not reflect all of his military service
* he was a good Soldier during his first enlistment; when he was at Fort Carson, he ended up with a group of Soldiers who did not accept him
* he does not deny the fact that he was absent without leave (AWOL); he made a mistake and he realizes he should have addressed the issue with his commander
* he was young and he made a mistake; however, since discharge, he has been married, raised two children, and he has a very good job
* he is shamed of the characterization of his service and does not want to be branded for life

3.  The applicant provides his DD Form 214. 

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 was born in July 1957.  He enlisted in the Regular Army (RA) at 19 years of age on 5 August 1976.  He was trained in and held military occupational specialty 36K (Tactical Wire Operations Specialist). 

3.  He served in Alaska from 6 January 1977 to 30 July 1979.  While in Alaska, he was honorably discharged on 26 February 1979 for the purpose of immediate reenlistment.  He completed 2 years, 6 months, and 22 days of active service during his first enlistment; however, a copy of his DD Form 214 for this period of service is not available for review with this case. 

4.  He reenlisted in the RA on 27 February 1979 under the "Continental United States (CONUS) Station of Choice" reenlistment option.  He reenlisted for Fort Carson, CO.  He was 21 years and 6 months of age at the time of reenlistment.

5.  On 10 January 1980, he departed his unit in an AWOL status but he returned to military control on 14 January 1980.  As a result, on 18 January 1980, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 10 to 14 January 1980. 

6.  On 7 February 1980, he again departed his unit in an AWOL status and on 8 March 1980, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities in Minneapolis, MN and returned to military control on 2 June 1980.

7.  On 12 June 1980, court-martial charges were preferred against him for one specification of AWOL from 7 February 1980 to 2 June 1980. 

8.  On 13 June 1980, the applicant consulted with legal counsel and was advised 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 of the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge 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.  In his request for discharge he indicated he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also:

* indicated he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* acknowledged he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or an under other honorable conditions discharge
* acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration
* acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected to submit a statement in his own behalf; however, his statement is not available for review with this case

9.  On 10 July 1980, his immediate and intermediate commanders recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.

10.  On 18 July 1980, consistent with the applicant's chain of command's recommendations the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by a court-martial.  He directed the applicant be reduced to the lowest enlisted grade and his service be characterized under other than honorable conditions.   On 8 August 1980, the applicant was accordingly discharged.

11.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 in the grade of E-1 with a character of service of under other than honorable conditions.  He completed 1 year, 1 month, and 13 days during this period.  This form further shows in:

* item 12a (Date Entered Active Duty This Period) - 79-02-27
* item 12b (Separation Date This Period) - 80-08-08
* item 12c (Net Active Service This Period) - 01-01-13
* item 12d (Total Prior Active Service) - 02-06-22
* item 18 (Remarks) does not mention his previous honorable service
* item 29 (Dates of Time Lost During This Period) 800110-800113 and 800207-800601
12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  Extreme care is used when completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information.  Effective 1 October 1979, military personnel who were discharged for the purpose of immediate reenlistment were no longer issued a separate DD Form 214.  

* Item 12a shows the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued
* Item 12b shows the Soldier’s transition/separation date 
* Item 12c and 12d show all service, less time lost under 10 U.S.C. 972 and time lost after expiration of term of service
* Item 12d shows prior active service
* Item 29 shows lost time

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

	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 states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  This 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. 
DISCUSSION AND CONCLUSIONS:

1.  With respect to the entry date: 

	a.  The applicant initially enlisted in the RA on 5 August 1976 and he was honorably discharged on 26 February 1979 for the purpose of immediate reenlistment.  He completed 2 years, 6 months, and 22 days of active service.  A DD Form 214 for this period of service is not available for review with this case.  There is no harm to the Army if he is issued a statement of service showing his honorable service from 5 August 1976 to 26 February 1979.

	b.  He reenlisted in the RA on 27 February 1979 and he was discharged on 8 August 1980.  He completed 1 year, 5 months, and 13 days of active service.  However, he had 4 months of lost time from 10 January to 13 January 1980       (4 days) and from 7 February to 1 June 1980 (3 months and 26 days).  Lost time is subtracted from the net active service.  His DD Form 214 also shows his prior active service of 2 years, 6 months, and 22 days.  This is the total service he performed during his first enlistment. 

2.  With respect to the characterization of service: 

	a.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested a discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Furthermore, his discharge accurately reflects his overall record of service.

	b.  He was 19 years of age at the time of his enlistment and he was 21 years and 6 months of age at the time of his reenlistment.  However, there is no evidence he was any less mature than other Soldiers who successfully completed their term of service or that his AWOL was a result of his age. 

	c.  The applicant could have elected trial by a court-martial if he felt there were extenuating circumstances or if he believed he was innocent of the charges.  Once court-martial charges were preferred against him, he chose a discharge vice facing a court-martial.  

	d.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is no basis for granting the applicant 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:

* issuing him an appropriate document such as a statement of service showing he served honorably from 5 August 1976 to 26 February 1979

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 the characterization of service. 



      _______ _ 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)                                         AR20140007039





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007039



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1