BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20140021255 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states that he enlisted in the U.S. Army in the rank of specialist (E-4) based on having a college degree and he was an excellent Soldier.  He was promoted to staff sergeant (SSG)/pay grade E-6 during his initial enlistment.

   a.  He was stationed at Fort George G. Meade (FGGM), MD.  At the time he was married.  He was introduced to drugs and became addicted to them.

   b.  After getting divorced he made a bad mistake by not cancelling his Basic Allowance for Quarters and Variable Housing Allowance.

   c.  He is now a productive member of society and working as a vocational counselor with the Department of Veterans Affairs (VA).

3.  The applicant provides no additional documentary evidence in support of his application.

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 Regular Army (RA) on 6 November 1990 for a period of 5 years.  He was awarded military occupational specialty 75B (Personnel Administration Specialist). 

   a.  He was –

* assigned to –

* Headquarters and Headquarters Company, 44th Engineer Battalion, Korea, from 8 April 1991 through 3 April 1992
* U.S. Army Garrison, FGGM, MD, on 4 April 1992

* promoted to –

* sergeant (E-5) on 1 September 1992
* SSG (E-6) on 1 March 1995

   b.  He reenlisted in the RA on 12 July 1995 for a period of 6 years.

3.  A review of the applicant's military personnel records failed to reveal a copy of a DD Form 458 (Charge Sheet).

4.  On 20 February 1996, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the Uniform Code of Military Justice (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 charges against him or of (a) lesser included offense(s) 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
* ineligible for many or all benefits administered by the Veterans Administration
* 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.  The applicant and his counsel placed their signatures on the document.

5.  His chain of command recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.

6.  On 29 February 1996, 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.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), as corrected by two DD Forms 215 (Correction to DD Form 214) both issued on 17 April 1997, show he was discharged on 28 March 1996 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), 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 5 years, 4 months, and 23 days of net active service during this period.

   b.  Item 18 (Remarks) shows, in pertinent part, "Immediate Reenlistments This Period:  19901106–19950711, 19950712–19960328."  (It does not show the period of his continuous honorable active service.)

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


9.  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, 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.

   c. 	Chapter 3, 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.

10.  Army Regulation 635-5 (Separation Documents), in effect act the time, 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 Official Military Personnel File.

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

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he served honorably on his initial period of active duty and he is now a productive member of society.

2.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

   a.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.

   b.  Therefore, in the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed is presumed to have been, and still is, appropriate.

3.  The evidence of record shows the applicant was charged with and he acknowledged he was guilty of the charges against him, which authorized the imposition of a bad conduct or dishonorable discharge.

   a.  He was reduced to private (E-1) and he completed less than 9 months of his 6-year RA reenlistment obligation.

   b.  The applicant's post-service conduct was considered.  However, his post-service conduct is insufficient as a basis for upgrading his discharge.

   c.  Thus, in view of the foregoing, it is concluded that the applicant's 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 general discharge.

4.  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 (from 6 November 1990 through 11 July 1995).

5.  Therefore, in view of all of the foregoing, the applicant's DD Form 214 should be corrected, as recommended below.

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 19901106 UNTIL 19950711."
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 either a general discharge under honorable conditions discharge 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)                                         AR20140021255



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ABCMR Record of Proceedings (cont)                                         AR20140021255



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