BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20150002681 


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, in effect:

	a.  Upgrade of his under other than honorable conditions discharge to an  honorable discharge.

	b.  Removal of an entry in item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 1987, which states he received an enlistment bonus of $5,000 on 23 September 1983.

2.  The applicant states, in effect, he has two reasons for which he requests the correction of his records:

	a.  At the time he took excess leave he was not given any professional counseling which outlined the repercussions of his decision not to complete his enlistment contract.  He was only 6 months away.  He holds the Army responsible for not caring enough about a young Soldier who was willing to lay down his life for his country and not finding him worth the time for counseling.

	b.  His DD Form 214 contains a false entry which indicates he was paid a $5,000 enlistment bonus.  He requests to see proof he was paid this bonus, and asserts none will be found because he never received it.  

	c.  The applicant contends the Army should be able to forgive a 6-month lapse of judgment if he can forgive the "error" stating he was paid a bonus.  He just wants to be remembered as having served honorably. 
3.  The applicant provides a 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.  His records contain the following enlistment documents:

	a.  DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve (USAR) on 27 September 1982 for the purposes of participating in a delayed-entry enlistment program (DEP).  On that same day he executed a DA Form 3286-40 (Statements for Enlistment - DEP) which showed entries wherein the applicant agreed to:

* volunteer for a period of 4 years, to begin not-later-than 28 June 1983
* enlist in the Regular Army under Table H-4, U.S. Army Airborne Enlistment Option and Table H-17, U.S. Army Cash Bonus Enlistment Option for an enlistment bonus of $5,000
* attend schooling for a military occupational specialty (MOS) within Career Management Field (CMF) 11 (Infantry)
* item 2 (Understanding) contains a handwritten comment which essentially acknowledged if he enlisted for an MOS which was authorized a cash bonus, he would only be entitled to the bonus payment level authorized on the date of his original entry into the DEP

	b.  On 6 October 1982, the applicant executed another DA Form 3286-40 wherein he agreed to the following:

* enlist in the Regular Army under Table 9-1, option 9-2, U.S. Army Training of Choice Enlistment Option
* he was assured of attending MOS schooling for 91E (Dental Specialist)
* item 2 (Understanding) contains a handwritten comment which essentially acknowledged if he enlisted for an MOS which was authorized a cash bonus, he would only be entitled to the bonus payment level authorized on the date of his original entry into the DEP

	c.  On 8 June 1983, he executed a DA Form 3286-3 (Statements of Enlistment - U.S. Army Training of Choice Enlistment Option) wherein he acknowledged, in connection with his enlistment in the Regular Army:

* his enlistment for this option assured he would receive training in the MOS 91E
* item 4 (Understanding) contains the statement "Any other promise or representation of commitments made to me in connection with my enlistment is written below in my own handwriting, or is hereby waived.  (If none, write "NONE"); after this statement is a handwritten "None"

	d.  Page 7 of DD Form 1966 (Application for Enlistment - Armed Forces of the United States), Section VI (Enlistment Options Accepted) shows in item 42f (Primary MOS/AFS) that MOS 11X is lined out and MOS 91E is entered.  Also, in item 42j (Specific Option/Program Enlisted For) it shows H-4 and H-17 are lined out, as is an entry which shows $5,000.  There is a handwritten note which states "See Section VIII (Recertification by Applicant and Correction of Data at the time of Active Duty Entry)."

	e.  Page 8 of DD Form 1966, in Section VIII, shows a reference to item 42j and states "Table 9-2 U.S. Army Training of Choice Enlistment Option, 91E).

3.  The applicant's records show he enlisted in the Regular Army on 8 June 1983.
After completing initial training, he was awarded MOS 91E effective 23 September 1983.  His initial assignment was to Fort Devens, MA.

4.  Orders 215-64, dated 4 November 1985, issued by Headquarters, Fort Devens, shows the applicant was reassigned on a permanent change of station to Korea.  His records also contain a DA Form 4600 (Travelope - Port Call and Travel Information), which instructed the applicant to report to the Military Airlift Command at the Overseas Terminal Building, Oakland International Airport, Oakland, CA on 29 May 1986.  

5.  Records indicate the applicant failed to report for overseas travel on the date prescribed and, on 30 May 1986 he was placed in an absent without leave (AWOL) status.  On 30 June 1986, he was dropped from the rolls as a deserter.  He surrendered to military authorities and was returned to military control on 21 August 1986.  He was assigned to the U.S. Army Personnel Control Facility at Fort Ord, CA.

6.  On 26 August 1986, court-martial charges were preferred charges against the applicant for one specification of being AWOL from 30 May 1986 to 21 August 1986.

7.  On 26 August 1986, the applicant consulted with counsel.  He was advised of the basis for his contemplated trial by court-martial, after which he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, he indicated he:

* was making the request of his own free will and had not been subjected to any coercion whatsoever by any person 
* was advised of the implications that were attached to his request
* acknowledged that, by requesting discharge, he understood the elements of the offense charged, was admitting guilt to the charge (or of a lesser included offense), and that the offenses could impose a bad conduct discharge or a dishonorable discharge
* understood, if his discharge request was approved, he could be given an under other than honorable conditions discharge, and this type of discharge could cause him to be deprived of many or all Army benefits
* understood he could be deprived of his rights and benefits as a Veteran under both Federal and State laws and could encounter substantial prejudice in civilian life as a result of having an under other than honorable conditions discharge
* elected not to submit a statement in his own behalf

9.  On 5 February 1987, the separation authority approved his request for discharge in lieu of court-martial with an under other than honorable conditions discharge.  On 31 March 1987, he was discharged accordingly.

10.  His DD Form 214 shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  This form shows he completed 3 years, 7 months, and 1 day of active service.  He had 83 days of lost time and 218 days of excess leave.  

	a.  He was awarded or authorized the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

	b.  Item 18 contains an entry which states he was paid an enlistment bonus of $5,000 on 23 September 1983.

11.  His records are void of any financial documents showing he either was or was not paid an enlistment bonus of $5,000.

12.  On 21 March 1993, the applicant applied to the Army Discharge Review Board (ADRB) requesting his discharge be upgraded to honorable.  The ADRB denied his request on 7 March 1996.

13.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  

   c.  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.

14.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures for the completion of the DD Form 214.  An entry is required in item 18 when the information is available in financial records which shows the type of last bonus paid, the amount paid, and the date this bonus was paid.

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

	a.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR, begins its consideration of each case with the presumption of administrative regularity (emphasis added), which is that what the Army did was correct.  

	b.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  

	c.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  As to the applicant's request to upgrade his under other than honorable conditions discharge:

	a.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request 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 appear to have been met, and that the rights of the applicant were fully protected throughout the separation process.

	b.  The applicant's period of AWOL served to diminish the overall quality of his service below that meriting either an honorable or a general discharge under honorable conditions.  

2.  Regarding his request to correct item 18 of his DD Form 214 wherein it states he received an enlistment bonus of $5,000:

	a.  Army Regulation 635-5 requires this entry when such information is available in financial records.  The fact that this entry is there, along with the date the bonus was paid, suggests the preparer of the DD Form 214 based the entry on some information contained in his financial records at the time.  

	b.  The DA Forms 3286-40 and his amended DD Form 1966/7 show his enlistment options were changed from CMF 11 with airborne training and a $5,000.00 cash bonus to 91E, Dental Specialist training of choice with no cash enlistment bonus listed.  It appears the applicant should not have been and likely was not paid a $5,000.00 bonus.  As such, it would be reasonable to presume the entry on his DD Form 214 was entered in error. 


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 deleting the entry "Enlistment Bonus (EB) paid:  $5,000.00, 830923" from item 18 of his DD Form 214.

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 upgrade of his under other than honorable conditions 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)                                         AR20150002681



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