PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            3 February 2000
	DOCKET NUMBER:   AR1999027703

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his Report of Separation or Discharge (DD Form 214) be corrected to show his military occupational specialty (MOS), awards and decorations and military education.  He further requests that his basic combat training and foreign service be included on his DD Form 214.  

3.  The applicant states he was told that a correction to his Report of Separation or Discharge (DD Form 215) would be issued, however, he never received one. 

4.  The applicant’s military records show that on 19 September 1991, he enlisted in the Army National Guard (ARNG) for 6 years in Hermosa, South Dakota.

5.  He was ordered to active duty for training (ADT) effective 6 February 1992 and he successfully completed his training as a motor transport operator.  At the completion of his ADT he was issued a DD Form 214 that shows he completed 5 weeks of training as a motor transport operator in May 1992.  The DD Form 214 also shows that he was awarded the Army Service Ribbon, the National Defense Service Medal, the Marksman Qualification Badge Rifle M16 and the Marksman Qualification Badge Hand Grenade.  On 28 June 1992 he completed his ADT (3 months and 23 days) and he was returned to the ARNG to complete his service obligation.  On 13 January 1992, he transferred to the Alaska Army National Guard (AKARNG).

6.  On 26 January 1993 the applicant was honorably discharged from the AKARNG to enlist in the Regular Army.  He had completed 1 year and 10 days net inactive service during his enlistment in the AKARNG.  He was issued a Report of Separation and Record of Service (NGB Form 22) that reflects his period of service in the AKARNG.

7.  On 27 January 1993 he enlisted in the Army in Anchorage Alaska for 3 years in the pay grade of E-2.  On 5 February 1993 he was transferred to Fort Bragg, North Carolina and he performed the duties of a motor transport operator.  He was subsequently deployed in support of Operation Restore Hope on 17 September 1993.

8.  The records show that the applicant went AWOL on 8 January 1994 and he remained absent until he was apprehended by civil authorities and returned to military control on 24 September 1994.

9.  On 6 October 1994 the applicant was convicted by civil authorities of one count of third degree burglary.  His sentence consisted of confinement for 3 years and a $150.00 fine.  On 31 October 1994 he was convicted of one count of third degree burglary and one count of forgery.  His sentence consisted of confinement for 4 years, a $150.00 fine for his burglary conviction and confinement for 3 years and a $150.00 fine for his forgery conviction.  The sentences were to run concurrently.
10.  On 2 December 1994, the applicant was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-200, Chapter 14 for misconduct – conviction by civil authorities had been initiated.  He was informed that he would be recommended for a discharge under other than honorable conditions.  He acknowledged receipt of the notification and he elected to waive all his of rights, including his right to consult with counsel.

11.  The appropriate authority approved the recommendation for discharge on 1 March 1995 and directed that the applicant be discharged under other than honorable conditions.  Accordingly, on 19 May 1995, he was discharged under other than honorable conditions, under the provisions of Army Regulation 
635-200, chapter 14 for misconduct – conviction by civil authorities.  He had completed 11 months and 7 days of total active service for this period of service.

12.  The DD Form 214 issued to him for this period of service was prepared using temporary records and the soldier’s affidavit and it fails to include his total prior active service, his total prior inactive service and his decorations.  The DD Form 214 also erroneously reflects that he was discharged under honorable conditions.

13.  A review of the records fails to show any foreign service in Somalia during either of the applicant’s periods of enlistment.

14.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It states, in pertinent part, that a DD Form 214 will not be prepared to contain information that has already been included in a previously issued DD Form 214 except where specifically requested.  The same regulation also states that only those MOS’s in which the soldier has served for a period of 1 year or more, will be entered on the DD Form 214 and that only formal courses of a non-combat skills related nature will be entered on the DD Form 214.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

CONCLUSIONS:

1.  The DD Form 214 that was issued to the applicant for his period of ADT reflects that he completed a 5-week course as a motor transport operator.  Although he completed the course he failed to serve in that MOS for 1 year or more while on active duty as specified in AR 635-5.  He enlisted in the Regular Army on 27 January 1993 and he went AWOL on 8 January 1994.  Therefore, the MOS was appropriately omitted from the DD Form 214 issued to him for the period of service covering 27 January 1993 through 19 May 1995.

2.  The applicant was discharged using temporary records and the soldier’s affidavit, which resulted in pertinent information being excluded from his DD Form 214.  The evidence of record clearly shows that his prior active and inactive service were omitted from his DD Form 214 along with his decorations.  His DD Form 214 should be corrected to reflect his service and to show his decorations.

3.  In reference to his military education, there are no courses listed on the DD Form 214 for the period of active service between 27 January 1993 through 19 May 1995 because when he was released from ADT he was issued a DD Form 214 that reflects his military education (motor transport operator).  

4.  During the preparation of the applicant’s DD Form 214 an administrative error was made which resulted in his character of service being reflected as under honorable conditions.  The records clearly show that a discharge under other than honorable conditions was directed and approved.  While the Department of the Army is not precluded from correcting it’s own administrative errors, this Board is precluded by statute from taking adverse action of any nature when an error is discovered that would result in an adverse effect on the applicant if corrected.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by issuing to the individual concerned a DD Form 215 that shows his total prior active and inactive service; and

b.  by including to his DD Form 215 the awards of the Army Service Ribbon, the National Defense Service Medal, the Marksman Qualification Badge Rifle M16 and the Marksman Qualification Badge Hand Grenade.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___ewl__  ___be___  ___mkp__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Margaret K. Patterson___
		        CHAIRPERSON

INDEX

CASE ID	AR1999027703	
SUFFIX		
RECON		
DATE BOARDED	2000/02/03	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  6	100.0500	
2.  8	100.0700	
3.		
4.		
5.		
6.