IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140017270 


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, through his Member of Congress, correction of his DD Form 214 (Report of Separation from Active Duty) as follows: 

* Item 9c (Authority and Reason) to reflect the authority and reason for his separation 
* Item 9e (Character of Service) from under other than honorable conditions discharge 
* Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) to show letters of recommendation from the company commander, boot camp at Fort Jackson, SC, and a general officer of the Electronic School at Redstone Arsenal, AL 

2.  The applicant states:

	a.  Block number 2 of his application asks for the present status with respect to the military.  He questions the issue whether he had been discharged because he never signed the DD Form 214.  He believes he is still enlisted since he never signed off from active duty.

	b.  Block number 5 of the application asks for the errors to be corrected.  He wants the following corrected: 

		(1)  item 9 of his DD Form 214, there is no reason or authority for the so-called discharge.  He does not know why one is not listed and he believes this is a violation of his declaration of indigenous rights.  Pursuant to the United States Codes (USC) and Titles, the Army is in violation of 18 Sec. 112-Protections of Internationally Protected Persons, 18 Sec. 241-Conspiracy Against Rights & 242 Deprivation of Rights, 28-USC Sec.-1746-Unsworn Declaration, 28-USC Section 2201.  He believes there might be much more violations and injustices that has been committed against him in this issue.

		(2)  There is an error if there is no record on file from the Department of Veterans Affairs (VA) Regional Office out of Atlanta, GA, and an injustice for the DD Form 214 to appear from the military personnel records archives in St. Louis, MO without his signature.  The DD Form 214 seems to be tampered with.  

	c.  The Board should find it in the interest of justice to consider the application.  Numerous what ifs could have taken place if he was not threatened and coerced to leave the military in such manner.  He consented to enlist in the military but never gave any consent to be discharged by wet ink signature.  The agreement of the parties makes the law of the contract.  It is a fraud to conceal a fraud.  A good judge decides according to justice and right, and prefers equity to strict law.  "Those awake, not those asleep, the laws assist (1 Timothy, 1:9).  For every legal right the law provides a remedy.  The greatest enemies to peace are force and wrong.  No man is bound to produce writings against himself.  Plain truths need not be proved.  It doesn't take much to see the injustice that has been done and errors that have been made."  Furthermore, the Army decides to deny him funds after 5 months into attending school under the VRAP program, that he signed up using his Marine Corps Discharge and which was approved.  In addition the Army claimed this felonious discharge that was not even on file according to the VA Regional Office in Atlanta.  An affidavit was sent out to VA in Atlanta and has been recorded www.nationalrepublicregistry.com/public/2013/GA/12.12.0000Ol.pdf 
and un-rebutted.  

	d.  He also received a letter of commendation out of Boot Camp at Fort Jackson, SC, from the Company Commander of the platoon he was in.  A letter of commendation from the Company Commander of the company he was attached to at Redstone Arsenal Huntsville, AL and from the General of the Electronic School at Redstone Arsenal Huntsville, AL in 1976.  If the discharge document was in fact correct, those letters would appear in item 26 of the DD Form 214.  If he showed good performance, made rank of E-4 in under two years, never had any article 15s for any misconduct, always made every formation and showed up for all details, where is it that he showed a character other than honorable conditions? Although he was absent without leave (AWOL) he turned himself back in to put himself back in honor not to stay in dishonor!

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 enlisted in the Regular Army for a 3-year term on 21 October 1975.  He completed basic combat training at Fort Jackson, SC. 

3.  He completed advanced individual training at Redstone Arsenal, AL and he was awarded military occupational specialty 27G (Redeye Missile System Repairman).  He was advanced to private/E-2 on 16 December 1975. 

4.  On 18 March 1976, he received a letter of commendation from the Chief, Electronic Circuits and Mechanic Team, U.S. Army Missile and Munitions Center, Redstone Arsenal.  The letter commended him for assistance and exemplary performance from 17 February to 22 March 1976.  His company commander endorsed this letter and ordered it filed in his official military personnel file. 

5.  Following completion of MOS training, he served in Germany from 3 June 1976 to 15 May 1977.  He was advanced to private first class/E-3 on 18 October 1976 and specialist four/E-4 on 1 January 1977. 

6.  On 16 May 1977, he departed his unit in an AWOL status and on 16 June 1977, he was dropped from the Army rolls as a deserter.  He ultimately surrendered to military authorities at Wright Patterson Air Force Base, OH, on 26 September 1977.

7.  Following his return from deserter status, he was assigned to Special Processing Company, U.S. Army Personnel Control facility, Fort Knox, KY for disposition of his case and administrative processing. 

8.  Also subsequent to his return, on 9 November 1977, court-martial charges were preferred against him for one specification of being AWOL from 16 May 1977 to 26 September 1977. 

9.  On 9 November 1977, he consulted with legal counsel and he 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 Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.   In his signed request for discharge he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he elected to submit a statement on his own behalf

10.  In his self-authored statement, he stated that he enlisted in the Army with the intention of serving out his enlistment.  However, due to extreme family problems, he requested a compassionate reassignment but his request was "lengthen due to my company's effectiveness" so he went AWOL to alleviate his family problems.  His family problems still existed and this is why he wants a discharge.  His attitude is very good and favorable toward the Army.  He only wished he had no problems and could stay in the Army.  His problems could only be solved with a discharge.   

11.  Also on 9 November 1977, the applicant requested and was approved for excess leave.  He was placed on excess leave from 9 November 1977 through an indefinite date pending disposition of his request for voluntary discharge.  He listed his home address as Atlantic City, NJ.  The DA Form 31 (Request and Authority for Leave) stated he would be discharged while in leave status and the separation document would be forwarded to the leave address he indicated.  It also stated this leave authorization would terminate on the effective date of his discharge.  He placed his initials on the DA Form 31 indicating his acknowledgement and understanding.

12.  On 10 November 1977, his immediate and intermediate commanders recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.  The immediate commander stated the applicant's conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or a dishonorable discharge.  

13.  On 16 November 1977, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with AR 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  

14.  On 6 December 1977, Headquarters, U.S. Army Armor Center, Fort Knox, KY, published Orders 235-4 ordering the applicant's discharge from active duty effective 8 December 1977. 

15.  On 8 December 1977, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he completed 1 year, 8 months, and 8 days of active service and he had 163 days of lost time.  It also shows in: 

* Item 9a (Type of Separation) – Discharge
* Item 9c – the entry "X X X X"
* Item 9d (Effective Date) – 77-12-08
* Item 9e – Under Other Than Honorable Conditions
* Item 10 (Reenlistment Code) – the entry "X X X X"
* Item 26- Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Item 27 (Remarks) – in pertinent part, "Administrative Discharge-Conduct triable by court-martial, SPD [Separation Program Designator] "JFS" Chapter 10, AR 635-200, RE-3 and 3B
* Item 29 (Signature of Person Being Separated) is blank

16.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations. 

17.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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, an under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  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.  

18.  AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous active service.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The regulation in effect at the time stated: 

* Item 9c requires an entry for the statutory or regulatory authority for separation plus the SPD Code 
* Item 9e requires an entry for the character of service as Honorable, Under Honorable Conditions, Under Other Than Honorable Conditions, or Dishonorable 
* Item 10 requires an entry for the Reenlistment Code obtained from the DA Form 20 (Enlisted Qualification Record) or AR 601-280 (Army Retention Program)
* Item 26 requires an entry for awards, medals, badges, citations, and campaigns ribbons awarded or authorized during the individual's entire Army service
* Item 27, this block is used for mandatory entries by Department of the Army for which a separate block is not available on the DD Form 214 or  entries that are too long for their respective block
* Item 29, when the individual cannot or will not sign, leave this entry blank and ensure the individual copies are delivered to the separatee; for all other copies enter "Separatee not available for signature" or "Separatee declined to sign" as appropriate

DISCUSSION AND CONCLUSIONS:

1.  With respect to the character 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 AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested 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.  Further, his discharge accurately reflects his overall record of service.

	b.  Contrary to his contention that he was coerced into discharge, the evidence of record clearly shows that not only did he consult with counsel, and not only did he voluntarily and willingly requested discharge, in his self-authored statement (at the time) he reiterated his desire for the discharge.  He was never forced into discharge.  

	c.  Contrary to his contention that he did not know he had been discharged, when he was placed on excess leave pending disposition of his case, he placed his initials on the DA Form 31 indicating his acknowledgement and understanding that the separation document would be forwarded to the leave address he indicated and that this leave authorization would terminate on the effective date of his discharge. 

	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 also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to an honorable discharge.

2.  With respect to the authority and reason, the regulation in effect at the time required an entry in item 9c for the statutory or regulatory authority for separation plus the SPD Code.  The same regulation also allowed the use of block 27 on the DD Form 214 for entries that are too long for their respective block.  Item 27 of the applicant's DD Form 214 clearly shows the reason and authority for separation, the SPD Code, and the Reentry Code.  They are properly placed and there is no reason to make any corrections. 
3.  With respect to the signature block, the regulation in effect at the time stated for item 29, when the individual cannot or will not sign, leave this entry blank and ensure the individual copies are delivered to the separate.  Because the applicant had already departed on excess leave when his discharge was approved, he could not have been available to sign this form.  As required by the governing regulation, the entry remained blank and there is no reason to correct it.  

4.  With respect to the letter of recommendation:

	a.  The only letter that his records show he received is a letter from the Chief, Electronic Circuits and Mechanic Team, U.S. Army Missile and Munitions Center, Redstone Arsenal.  The letter commended him for assistance and exemplary performance from 17 February to 22 March 1976.  His company commander endorsed this letter and ordered it filed in his official military personnel file.  The letter is in fact filed in his service record.

	b.  Commanders and supervisors may recognize acts, achievements, or periods of faithful service or special acts which do not meet the standards required for decorations by issuing a certificate of achievement or commendation of local design or a letter of appreciation and/or commendation.  Although copies of certificates of achievement or letters of commendation may be filed in the official military personnel file, there is no distinguishing device authorized for wear to indicate the receipt of letter of commendation and there is no provision to list such letters on the DD Form 214.

5.  With respect to the VA issues, the decisions made by the VA regarding his eligibility or entitlements to benefits is not within the purview of this Board.  The VA is independent from the Department of the Army and is governed by its own laws and regulations.  Questions regarding VA benefits, forms, records, and eligibility should be addressed to the VA. 

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 that 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)                                         AR20140017270





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ABCMR Record of Proceedings (cont)                                         AR20140017270



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