IN THE CASE OF:  	  

		BOARD DATE:  1 September 2015	  

		DOCKET NUMBER:  AR20140020813 


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:

	a.  issuance of DD Forms 214 (Certificate of Release or Discharge from Active Duty) for his prior periods of honorable service and

	b.  an upgrade of his dishonorable discharge to honorable.

2.  The applicant states:

	a.  He served three overseas tours in Germany and had two honorable discharges.  His DD Form 214 does not show this service to his country.  He should receive DD Forms 214 for his honorable service.

	b.  He enlisted in the Army at age 17.  He immediately went overseas to Germany for a 4-year tour.  He had no experience or family to guide him.  He worked hard to serve his country.

	c.  He requests an upgrade of his dishonorable discharge to honorable or, if this is not possible, he would like DD Forms 214 showing his prior honorable discharges.  His last DD Form 214 should not represent his entire career in the military.

	d.  He received several awards, including Army Good Conduct Medals, Army Achievement Medal, Army Service Ribbon, Overseas Service Ribbons, Expert Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Grenade Bar, and Noncommissioned Officer Development Ribbon.

	e.  He was denied medical assistance by the Department of Veterans Affairs (VA) due to his last discharge.  His two prior honorable discharges should allow him to receive medical care from a VA hospital.

3.  The applicant provides:

* three character-reference letters
* high school diploma
* Honorable Discharge Certificates, dated 13 January 1984 and 25 October 1987
* DD Form 214 for the period ending 15 November 1991
* certificates of completion and training 

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 born on 14 January 1958.  He enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 13 October 1976 at age 18 under the Delayed Entry Program (DEP).  He was discharged from the USAR DEP on 13 June 1977 for immediate enlistment in the Regular Army.

3.  He enlisted in the Regular Army on 14 June 1977 at age 19 for a period of 3 years.  He completed his training and was awarded military occupational specialty (MOS) 05F (radio teletype operator) and later MOS 11B (infantryman).  On 27 March 1980, he was honorably discharged for immediate reenlistment.

4.  He reenlisted on 28 March 1980 for a period of 4 years.  On 13 January 1984, he was honorably discharged for immediate reenlistment.

5.  He reenlisted on 14 January 1984 for a period of 4 years.  On 25 October 1987, he was honorably discharged for immediate reenlistment.

6.  He reenlisted on 26 October 1987 for a period of 6 years.

7.  His records show he served in Germany from:

* 16 December 1977 to 14 June 1980
* 17 February 1982 to 17 February 1985
* 28 January 1988 to 30 May 1990

8.  On 24 September 1990, he was convicted by a general court-martial of conspiring to commit burglary, larceny (two specifications), and burglary.  He was sentenced to confinement for 2 years, forfeiture of all pay and allowances, and a dishonorable discharge.  On 21 December 1990, the convening authority approved only so much of the sentence as provided for forfeiture of all pay and allowances, confinement for 18 months, and a dishonorable discharge.

9.  The U.S. Army Court of Military Review decision is not available for review.  However, Headquarters, U.S. Army Field Artillery Center and Fort Sill, General Court-Martial Order Number 66, dated 5 November 1991, shows Article 71(c) having been complied with, the applicant's sentence had been finally affirmed and the dishonorable discharge would be executed.

10.  On 15 November 1991, he was issued a dishonorable discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 11, as a result of court-martial.

11.  His DD Form 214 shows he entered active duty on 14 June 1977 and was discharged on 15 November 1991.  He completed a total of 13 years, 3 months, and 11 days of creditable active service with 415 days of lost time.  He was awarded or authorized the:

* Army Good Conduct Medal (4th Award)
* Driver and Mechanic Badge with Driver-W Bar
* Army Achievement Medal
* Army Service Ribbon
* Overseas Service Ribbon (3rd Award)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Marksman Marksmanship Qualification Badge with Grenade Bar
* Noncommissioned Officer Development Ribbon (2nd Award)

12.  Item 18 (Remarks) of his DD Form 214 shows the entry "ENLISTMENT/
IMMEDIATE REENLISTMENT THIS PERIOD:  770614-800328; 800329-840113; 840114-871025."

13.  He provided three character-reference letters from his wife and two friends who attest:

* he is a hard worker, great provider, caring, very loving, and extremely considerate
* he has been married for 16 years
* he is a loving husband, brother-in-law, and dedicated father
* he is organized, efficient, and competent
* his actions are a testament of  his belief that every person deserves a second chance
* he has earned the opportunity for his status to be upgraded
* he is not only committed to the growth and development of his community and family, but he also continues to seek education to obtain better employment

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

	a.  Chapter 11, in effect at the time, stated a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.  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.

15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

16.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed preparation of the DD Form 214.  This version stated a DD Form 214 would not be prepared to cover a period of service for which a previous DD Form 214 was issued.  Effective 1 October 1979, DD Forms 214 would no longer be issued for immediate reenlistments; all service would be continuous from the date the last DD Form 214 was issued.  Prior to 1 October 1979, a DD Form 214 was prepared when a Soldier was discharged for the purpose of immediate reenlistment.

17.  Interim change 1 to Army Regulation 635-5, dated 2 October 1989, revised the instructions for completing the DD Form 214.  The instructions stated to enter enlistment/reenlistment periods for which a DD Form 214 was not issued in the remarks block, e.g., "IMMEDIATE REENLISTMENTS THIS PERIOD:  761218-791001; 791002-821001."  However, for Soldiers who previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "honorable," the following statement will appear as the first entry in the remarks block:  "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service for which a DD Form 214 was not issued, e.g., 761218) UNTIL (date before commencement of current enlistment, e.g., 821001), then enter the specific periods of reenlistments as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention his DD Form 214 does not show his prior honorable periods of service.  The remarks section of his DD Form 214 shows his initial enlistment and immediate reenlistments in 1977, 1980, and 1984, indicating these enlistments were honorable.  However, the governing regulation states for Soldiers who previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "honorable," the first entry in the remarks block will show his/her continuous honorable active service from the first day of service for which a DD Form 214 was not issued until the date before commencement of the current enlistment.  Therefore, it would be appropriate to amend item 18 of his DD Form 214 to show his prior continuous honorable service from 14 June 1977 to 25 October 1987.

2.  Although he contends he should receive DD Forms 214 for his honorable periods of service, the governing regulation states DD Forms 214 are no longer issued for immediate reenlistments effective 1 October 1979. 

3.  His contention that he was 17 years old when he enlisted was noted.  However, the evidence shows he was 19 years old when he enlisted in the Regular Army and he successfully completed training.  In addition, he completed 13 years of service prior to his misconduct.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

4.  The character-reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

5.  A trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

6.  His prior honorable discharges and awards and decorations were carefully considered.  However, his record of service during his last enlistment included one general court-martial conviction for serious offenses and 415 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

7.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

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 adding the following entry to item 18 of his DD Form 214:  "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770614-871025"

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 issuing separate DD Forms 214 for his prior periods of honorable service or upgrading his dishonorable 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)                                         AR20140020813



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ABCMR Record of Proceedings (cont)                                         AR20140020813



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