IN THE CASE OF: BOARD DATE: 3 December 2015 DOCKET NUMBER: AR20150003518 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 reconsideration of his previous request for upgrade of his under other than honorable conditions discharge and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his honorable service in item 18 (Remarks). 2. The applicant states he was only absent without leave (AWOL) once. He was held by civilian authorities from 23 January 1995 to 10 August 1995. He was transferred between Bell County Jail and Bastrop County Sheriff’s Office. He was never released to military control. He was in the Delayed Entry Program (DEP) from 29 September 1989 through 26 June 1990. His continuous honorable service should be from 29 September 1989 through 25 September 1994. He did not go AWOL until 26 September 1994. 3. The applicant provides two VA Forms 21-0958 (Notice of Disagreement), a letter from the Department of Veterans Affairs, and his Texas Department of Public Safety Criminal History Search. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130009837, on 6 February 2014. 2. On 29 September 1989, the applicant enlisted in the DEP. He acknowledged the following statement listed in his DEP contract with his initials: My enlistment in the DEP is in a non-pay status. I understand my period of time in the DEP is NOT creditable for pay purposes upon entry into a pay status. 3. On 27 June 1990, the applicant enlisted in the Regular Army for a period of 4 years. After completing initial entry training, he was awarded military occupational specialty 13F (Fire Support Specialist). 4. On 3 December 1993, he reenlisted for a period of 4 years. 5. A DD Form 616 (Report of Return of Absentee), dated 22 January 1995, shows he: * was reported AWOL on 26 September 1994 * returned to military control on 21 January 1995 from a county jail in Texas 6. A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) shows he was AWOL again on 24 January 1995. 7. A DD Form 458 (Charge Sheet), dated 24 February 1995, shows he was charged with being AWOL from 26 September 1994 to 21 January 1995 and from 24 January 1995 through a date not shown. 8. A DD Form 616, dated 28 March 1995, shows he returned to military control on 23 March 1995 after being apprehended by civilian authorities for "theft of a firearm, theft over $1,500 under $20,000, and insufficient checks." 9. The complete facts and circumstances of his discharge processing are not available for review. However, he provides a DD Form 214 showing he was discharged in lieu of trial by court-martial on 15 November 1995 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. His service was characterized as under other than honorable conditions. 10. He completed 4 years, 5 months, and 26 days of net active service during this period and he had lost time from 26 September 1994 to 21 January 1995 and from 24 January to 16 August 1995. Item 18 of his DD Form 214, as corrected by a DD form 215 (Correction to DD Form 214), contains the following pertinent entries: * "IMMEDIATE REENLISTMENTS THIS PERIOD-- 19931203-19971202" * "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE" * "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19900627-19931202" 11. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. 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. 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. 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. 13. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparation of the DD Form 214. The instructions for item 18 states 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 for which DD Form 214 was not issued) UNTIL (day before commencement of current enlistment)." Then, enter the specific periods of reenlistments. DISCUSSION AND CONCLUSIONS: 1. The applicant contends he only went AWOL once and he was never released to military control; however, evidence show he was AWOL on two separate occasions and he was returned to military control on 23 March 1995. 2. His records do not include the complete facts and circumstances surrounding his discharge. However, his records show he was charged with being AWOL during two periods, offenses for which a court-martial could have sentenced him to a punitive discharge, and his DD Form 214 confirms he was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. There is no evidence of error or injustice in the discharge he received. 4. He contends his period of honorable service is incorrect because it does not include his DEP time and he did not go AWOL until 26 September 1994. 5. According to the governing regulation, Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "honorable," their continuous honorable active service is calculated from the entry date onto active duty through the day before the reenlistment. Time in the DEP is not included as it is not active service. 6. The applicant entered active duty on 27 June 1990 and reenlisted on 3 December 1993. Based on this information and the governing regulation, his continuous honorable service was correctly calculated in his previous ABCMR decision document as 27 June 1990 through 2 December 1993. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130009837, dated 6 February 2014. _______ _ __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) AR20150003518 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003518 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1