IN THE CASE OF:	

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140008702 


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 to an honorable discharge and in effect reflect such service on his discharge document.

2.  The applicant states that while he was on leave, he and his sister were involved in an automobile accident.  His sister was trapped in the car and her injuries were life-threatening.  He was thrown from the car, sustained a head injury, and was unconscious for several hours.  They were both hospitalized.
He called his commander and requested an extension of his leave to remain at his sister's bedside.

   a.  He adds that he was an outstanding Soldier and always performed his duties with pride and honor from 11 January 1980 to 29 September 1989.  He also earned an Associates of Arts degree from the University of Maryland.

   b.  He went to a Veterans Administration (VA) hospital for a medical check-up, but was denied medical care.

3.  The applicant provides two VA documents.

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 U.S. Army Reserve (USAR) on 17 November 1981 for a period of 6 years.

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty for training (ADT) on 13 January 1982, was honorably released from ADT on 30 April 1982, and transferred to a USAR unit.  It also shows he was awarded military occupational specialty 55B (Ammunition Specialist).  He had completed 3 months and 18 days of net active duty service this period.

4.  On 3 January 1983, he was discharged to enlist in the USAR Delayed Entry Program (DEP).

5.  He enlisted in the USAR DEP on 4 January 1983 and further enlisted in the Regular Army (RA) on 1 February 1983 for a period of 3 years.  On 3 January 1984, he extended his 3-year enlistment to a period of 4 years and 5 months.

6.  He reenlisted in the RA on 4 February 1988 for a period of 6 years.  He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 May 1989.

7.  The applicant's military personnel record shows he was –

* confined by civil authorities from 9 July 1989 through 18 July 1989
* dropped from the rolls of his unit on 19 July 1989
* returned to military control on 28 August 1989

8.  A review of the applicant's military personnel record failed to reveal a DD Form 458 (Charge Sheet) or a copy of the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). 

9.  Headquarters, National Training Center, Fort Irwin, CA, Orders 186-26, dated 26 September 1989, discharged the applicant from the RA on 29 September 1989.  The orders show his rank as private (E-1).

10.  The applicant's DD Form 214 shows he entered active duty this period on 
1 February 1983 and he was discharged under other than honorable conditions on 29 September 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

	a.  He had completed 6 years, 7 months, and 29 days of active duty service this period; 3 months and 18 days of total prior active service; and 11 months and 23 days of total prior inactive service.

	b.  He was authorized or awarded the Army Service Ribbon, Army Achievement Medal, Army Good Conduct Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon, Sharpshooter Marksmanship Qualification Badge with (M-16) Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar.

	c.  Item 18 (Remarks) shows, in pertinent part, "Delayed Entry Program (DEP), 4 January 1983 – 31 January 1983."  It does not show the period of his continuous honorable active service.

11.   A review of the applicant's military personnel record failed to reveal evidence that he requested an extension of leave for the time period that is under review in this case or that he was denied any such request.

12.  On 1 November 1989, the applicant submitted a request to the Army Discharge Review Board (ADRB) for a change to the character of service of his discharge.  A review of his request failed to reveal evidence that he indicated he had requested an extension of leave or that it was denied by his commander during the time period under review and in question.

a. The ADRB Case Report and Directive shows –

* on 15 September 1989, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 19 July 1989 to 27 August 1989
* on 19 September 1989, the applicant consulted with legal counsel, he requested separation, and did not submit a statement in his own behalf
* on 22 September 1989, the separation authority approved the applicant's request for discharge
* on 27 September 1989, a medical examination cleared the applicant for separation
* on 29 September 1989, the applicant was discharged

   b.  On 3 August 1990, the ADRB determined that the reason for the applicant's discharge and the character of his service was both proper and equitable.  Accordingly, the ADRB denied the relief requested by the applicant.

13.  In support of his application the applicant provides the following documents.

   a.  VA record, dated 9 May 2011, that shows the applicant served in the Army from 1 February 1983 to 29 September 1989 and that his character of service disqualified him for VA purposes.

   b.  VA instruction sheet that provides information in the event he disagrees with the VA decision.  It shows, in pertinent part, he can ask the Service Department to change the character of discharge or he can apply for correction of his military records.

14.  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.

15.  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.
16.  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 that his discharge under other than honorable conditions should be upgraded because he completed more than 6 years of active duty service, attained the rank of SSG, and was an outstanding Soldier; he requested an extension of his leave based on medical reasons, but his request was denied; and he was improperly discharged.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to show he requested an extension of leave for the period of service in which he was in an AWOL status.  In any event, a request for leave extension (and any subsequent denial) would not be a basis to justify the applicant's AWOL during the period in question.

3.  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.  Therefore, in the absence of evidence to the contrary, the type and character of discharge directed is presumed to have been, and still is, appropriate.

4.  The applicant's achievements during his military service are acknowledged.

	a.  However, the evidence of record also shows the applicant was AWOL from 19 July 1989 to 27 August 1989.  This offense, that led to his discharge action, outweighs his overall record of service during the period under review.

   b.  Thus, the applicant's 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.

6.  Records show the applicant was issued a DD Form 214 for the period of his ADT from 13 January 1982 through 30 April 1982.

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

* enlisted on 1 February 1983 – honorably discharged on 3 February 1988
* reenlisted on 4 February 1988 – discharged under other than honorable conditions on 29 September 1989

8.  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.


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 19830201 UNTIL 19880203."

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)                                         AR20140008702



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ABCMR Record of Proceedings (cont)                                         AR20140008702



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