IN THE CASE OF:	  

		BOARD DATE:	 12 February 2015 

		DOCKET NUMBER:  AR20140007310 


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 (Armed Forces of the United States Report of Transfer or Discharge) to show his honorable active service.

2.  The applicant states he was discharged for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and assigned separation program number 246.  He is dealing with cancer and could use some assistance from the military.  He would like a military funeral.

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 was inducted into the Army of the United States on 25 April 1968.  His U.S. Army Personnel Services Support Center Form 29 (Acknowledgement of Service Obligation), dated 25 April 1968, shows he acknowledged he incurred a 2-year active duty service obligation.  Upon completion of his term of active duty he would, if qualified, be transferred to the U.S. Army Reserve and required to serve in a Reserve Component for a period which, when added to his active duty service, totaled 6 years, unless sooner discharged in accordance with standards prescribed by the Secretary of Defense.

3.  On 19 January 1970, he was convicted of being absent without leave (AWOL) from on or about 3 March 1969 to on or about 19 March 1969 by a special court-martial.  He was sentenced to hard labor for 4 months and forfeiture of $43.00 pay per month for 4 months.

4.  A DA Form 188 (Extract Copy of Morning Report) shows he returned to military control on 22 January 1969 after being apprehended by civil authorities and remanded to the Anson County Jail, NC.  On 24 January 1970, he was dropped from the rolls of the unit by reason of being AWOL since 26 December 1969.

5.  On 27 February 1970, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He stated he had not been subjected to coercion with respect to his request and had been advised of the implications attached to it.  He understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate if his request were approved.  He also understood he would be deprived of many or all benefits administered by the Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State laws as a result of the issuance of such a discharge.  He further understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected not to submit statements in his own behalf.  He stated he had been afforded the opportunity to consult with counsel and declined.

6.  On 27 February 1970, his company commander recommended approval of his request and recommended an undesirable discharge.  His company commander stated a review of his records in conjunction with his negative attitude toward honorable service indicated it would be in the best interests of the Army if his request for discharge were approved.

7.  On 23 April 1970, his intermediate commander recommended his discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  His intermediate commander stated that after careful consideration of the available data, including one previous conviction by a special court-martial, it appeared that approval of his request would be in the best interests of the government and the applicant.

8.  On 27 April 1970, the commanding general approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge and directed his reduction to the lowest enlisted grade prior to being discharged.

9.  On 7 May 1970, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 1 year, 2 months, and 19 days of creditable active service.  His service was characterized as under other than honorable conditions and he was assigned separation program number 246.

10.  His records show he was charged with lost time due to absence or confinement during the following periods:

* 30 December 1968 (1 day)
* 6-8 January 1969 (3 days)
* 20 January-9 February 1969 (20 days)
* 3-18 March 1969 (16 days)
* 20 March-11 June 1969 (2 months and 22 days)
* 7-8 July 1969 (2 days)
* 22 July-6 November 1969 (3 months and 15 days)
* 26 December 1969-22 February 1970 (1 month and 27 days)

11.  On 15 May 1979 after careful consideration of his military records and all other available evidence, the Army Discharge Review Board denied his application for an upgrade of his discharge.

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed preparation of the DD Form 214.  A DD Form 214 would be issued to all personnel at the time of retirement, discharge, or release from active duty.  Effective 1 October 1979, DD Forms 214 would no longer be issued for enlisted members who were discharged for immediate reenlistment in the Regular Army and all service would be continuous from the date the last DD Form 214 was issued.

13.  Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance related to transition management and explains separation document preparation, distribution, correction, and transition processing.  Chapter 5 provides guidance regarding preparation of separation documents.  Conditional entries that will be annotated in the remarks section include, in part, the following instructions:

	a.  For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the inclusive dates for each period of reenlistment.

	b.  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 for which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."  Then, enter the specific periods of reenlistment as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show his honorable active service was carefully considered.

2.  Army Regulation 635-5, in effect at the time, did not provide for entries documenting prior periods of honorable service on a DD Form 214.  Army Regulation 635-8, currently in effect, allows for an entry in the remarks section of the DD Form 214 only for Soldiers who previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable.

3.  Although he was separated under other than honorable conditions, he did not complete any period of honorable active service and reenlist for a period of active service without being issued a DD Form 214.  Therefore, he is not entitled to 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 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.

ABCMR Record of Proceedings (cont)                                         AR20140007310



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ABCMR Record of Proceedings (cont)                                         AR20140007310



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