IN THE CASE OF:  

		BOARD DATE:  29 January 2015	  

		DOCKET NUMBER:  AR20140008989 


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 served in the Regular Army (RA) for almost four years and reenlisted with the intention of making the Army his career.  He was very young and made an embarrassing mistake, which he still regrets.  He adds that he is a homeowner and would like to obtain a Department of Veterans Affairs (VA) home loan guarantee.

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 RA on 5 July 1978 for a period of 4 years.  At the time he was 18 years of age.

3.  Upon completion of training he was awarded military occupational specialty (MOS) 63B (Light Wheeled Vehicle and Power Generator Mechanic).  He served overseas in Germany from 2 December 1978 through 29 November 1980 and he was promoted to specialist four (SPC)/pay grade E-4 on 1 May 1980.

4.  He reenlisted in the RA on 12 January 1982 for a period of 3 years and training in MOS 91R (Veterinary Specialist).  At the time he was 21 years of age.

5.  His military personnel record shows that he was assigned to Company B, 
1st Battalion (Student), Academy of Health Sciences, Fort Sam Houston, TX, on 27 March 1982.  It also shows he was recycled for training in MOS 91R on
19 April 1982 and relieved from training on 5 July 1982.

6.  He accepted nonjudicial punishment (NJP) on two occasions, as follows –

* on 14 September 1981, for willfully disobeying a lawful order to get a haircut
* for issuing checks for the purpose of cash and failing to maintain sufficient funds in his account for payment of such checks (two specifications; 
on 13 June 1982 and 21 June 1982)

7.  On 21 September 1982, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being absent without leave (AWOL) from 19 July 1982 to 17 September 1982.

8.  On 23 September 1982, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.


	b.  He was advised that he might:

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the VA
* be deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions.

	d.  He was also advised that he could submit statements in his own behalf and he elected not to a submit statement.

   e.  The applicant and his counsel placed their signatures on the document.

9.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

10.  The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

11.  The applicant's DD Form 214 shows he was discharged on 29 October 1982 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, with an under other than honorable conditions characterization of service.

   a.  He had completed 4 years, 1 month, and 27 days of net active service during this period and he had 60 days of time lost.

   b.  Item 18 (Remarks) shows, in pertinent part, "Immediate Reenlistment This Period:  820112."  It does not show the period of his continuous honorable active service.

12.  A review of the applicant's military personnel record failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

13.  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.  Chapter 3 provides in:

   	(1)  paragraph 3-7a 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; and

    	(2)  paragraph 3-7b 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.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance for preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the military personnel record.

	b.  Paragraph 2-1 states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.

	c.  Paragraph 2-4 contains item-by-item instructions for completing the DD Form 214.  It states item 18 is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks.

		(1)  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)."

		(2)  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)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded because he served in the RA for almost four years, he was very young and made a mistake, and he would like to obtain a VA home loan.

2.  The applicant entered the RA at age 18.  He successfully completed training, was awarded MOS 63B, promoted to SPC (E-4), and approved to reenlist in the RA.  Thus, his contention that he was young and immature when he committed his acts of indiscipline and misconduct after reenlisting in the RA at the age of 
21 is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record shows the applicant accepted NJP on two occasions and he was in an AWOL status for a period of 60 days.  Thus, the evidence of record does not support his contention that he made a (i.e., one) mistake.

4.  His request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were both proper and equitable.

5.  During the period of service under review, the applicant accepted NJP on two occasions, he had 60 days of lost time due to AWOL, and he completed less than 10 months of his 3-year reenlistment obligation.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or a general discharge.

6.  Records show the applicant had two separate periods of enlistment in the RA during the period of service under review, as follows:

* enlisted on 5 July 1978 – honorably discharged on 11 January 1982 to reenlist
* reenlisted on 12 January 1982 – discharged under other than honorable conditions on 29 October 1982

7.  The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.

   a.  The evidence of record also shows that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment.

	b.  Item 18 of the applicant's DD Form 214 does not contain such an entry.

	c.  Therefore, it would be appropriate to correct item 18 of his DD Form 214 to show his continuous period of honorable active service.

8.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits and other government programs.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.

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 adding the following entry to item 18 of his DD Form 214:  "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19780705 UNTIL 19820111."

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 upgrade of his entire period of service to a general discharge under honorable conditions or an honorable 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)                                         AR20140008989



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ABCMR Record of Proceedings (cont)                                         AR20140008989



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