IN THE CASE OF:  	  

		BOARD DATE:  7 July 2015  	  

		DOCKET NUMBER:  AR20140019513 


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 that his discharge under other than honorable conditions be upgraded to a fully honorable discharge and that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect all of his service.

2.  The applicant states, in effect, that he had a good record until he was serving in Korea and his grandfather died and his wife went missing.  He came back from Korea and when he was due to return to Korea he decided to keep looking for his wife and was absent without leave for 26 days, which proved to be poor judgment and a career ender. 

3.  The applicant provides a 3-page letter explaining his application, 14 letters and certificates, his grandfather’s obituary, and a copy of his enlistment contract.

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.  A DD Form 214 for the period ending 9 March 1982 shows he completed 6 months and 9 days of active duty for training as a member of the U.S. Army Reserve (USAR) during that period.  Though somewhat illegible, it appears that the Reserve Obligation Termination Date is reflected as 30 August 1987, which would indicate he enlisted in the USAR effective 31 August 1981.

3.  A DA Form 1695 (Oath of Extension of Enlistment), dated 18 June 1985, shows on that date he extended his 3-year active duty enlistment of 28 August 1982 for a period of 24 months.  The applicant reenlisted at Fort Bliss, Texas on 27 August 1986 for a period of 4 years and a selective reenlistment bonus. 

4.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Houston, Texas on 6 September 1993.  However, his records show that he went absent without leave from 7 May to 29 June 1988 (54 days).

5.  His DD Form 214 shows that it was prepared from temporary records and shows that he was discharged under other than honorable conditions on             3 August 1988, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  His DD Form 214 also indicates that a DD Form 215 (Correction to DD Form 214) would be prepared to provide missing information.

6.  On 6 November 1990, the Army Reserve Personnel Center issued a 
DD Form 215 providing missing information.  The corrections reflected on this form show, in part, that for the period covered he entered active duty on 27 August 1986; completed 1 year, 9 months, and 14 days of net active service this period; completed 6 months and 9 days of prior active service; and 4 years, 5 months, and 18 days of prior inactive service.

7.  There is no evidence of record that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

9.  Army Regulation 635-200, 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.

10.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  In regards to his request for an upgrade of his discharge, in the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation  635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence and the absence of his complete military records.  Therefore, in the absence of evidence to the contrary, it must be presumed that his service simply did not rise to the level of under honorable conditions.

4.  Accordingly, there appears to be no basis for granting his request for an upgrade of his discharge.
5.  In regard to his request for correction to his DD Form 214 to reflect all of his service, evidence shows he served continuously on active duty from 28 August 1982 through 3 August 1988, a period of 5 years, 11 months, and 7 days with 54 days of time lost.  Therefore, it would be appropriate to correct his DD Form 214 as amended by the DD Form 215, dated 6 November 1990, by issuing him a second DD Form 215 to show:

* Item 12a (Date Entered Active Duty This Period) "82 08 28"
* Item 12c (Net Active Service This Period) "05 09 13"
* Item 12e (Total Prior Inactive Service) "00 05 19"

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 amending his DD Form 215, dated 6 November 1990 to show:

* Item 12a (Date Entered Active Duty This Period) "82 08 28"
* Item 12c (Net Active Service This Period) "05 09 13"
* Item 12e (Total Prior Inactive Service) "00 05 19"

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)                                         AR20140019513





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ABCMR Record of Proceedings (cont)                                         AR20140019513



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