BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160004182 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ __x______ __x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160004182 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 to item 18 the entry "Continuous Honorable Service from 19800513-19851023." 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 upgrading his general discharge to fully honorable. ___________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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160004182 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 general discharge. 2. The applicant states he spent 16 months in Germany with the 3rd Armored Division as a senior radio operator, where he earned the Army Achievement Medal for his communications expertise. He also served with the 10th Special Forces Group (Airborne) at Fort Devens, MA, where he worked as a radio operator and also as an administrative sergeant. He earned another Army Achievement Medal for placing second on a Special Forces drill team. He served honorably for 6 years and made a major mistake that cost him his military career. He feels his discharge should change to allow him veterans' benefits (plates, burial, etc.). He was a dedicated Soldier who made a mistake. 3. The applicant does not provide any additional evidence. 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) for 3 years on 13 May 1980 and he held military occupational specialty 31C1P (Single Channel Radio Operator with Airborne Identifier). 3. He served in Germany from 22 November 1980 to 17 May 1982. He was assigned to the 2nd Battalion, 48th Infantry Regiment, 3rd Armored Division. He was reassigned to the Signal Company, 10th Special Forces Group (Airborne), Fort Devens, MA. 4. He reenlisted on 23 December 1982 for 3 years and he was advanced to the noncommissioned officer (NCO) rank/grade of sergeant/E-5 on 3 September 1984. He again reenlisted on 24 October 1985, also for 3 years. 5. On 17 March 1986, he participated in a unit urinalysis and his urine sample tested positive for marijuana. 6. On 12 June 1986, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana. His punishment consisted of a reduction to specialist/E-4, a suspended forfeiture of pay, and extra duty. He elected not to appeal. 7. On 21 July 1986, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(c) and (d) by reason of commission of a serious offense. The immediate commander recommended an under honorable conditions (general) discharge. 8. On 21 July 1986, the applicant acknowledged receipt of the commander's intent to separate him. He subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He waived consideration of his case by an administrative separation board and/or personal appearance before a board and he elected not to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded 9. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, commission of a serious offense in accordance with AR 635-200, chapter 14. His chain of command recommended approval with the issuance of a general discharge. 10. On 22 July 1986, subsequent to a review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of paragraph 14-12(c) and (d) of AR 635-200 with his service characterized as under honorable conditions (general). The applicant was discharged accordingly on 5 August 1986. 11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct – commission of a serious offense, (Separation Code JKQ), under the provisions of AR 635-200, paragraph 14-12c, with his service characterized as general, under honorable conditions. He completed 6 years, 2 months, and 23 days of net active service this period. His DD Form 214 shows in: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Army Service Ribbon, Army Achievement Medal (1st Oak Leaf Cluster), Parachutist Badge, Army Good Conduct Medal (1st Award), and Expert Marksmanship Qualification Badge with Rifle and Pistol Bars * Item 18 (Remarks), the entry "Immediate Reenlistment This Period: 800513-821222, 821223-851023, and 851024-860805" 12. There is no indication he petitioned the ADRB for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: AR 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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. 2. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214. Item 12 shows the record of service. Extreme care is used when completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information. Item 18 (Remarks) should show mandatory entries, including periods of reenlistment and continuous honorable service. a. The version of the regulation (1 July 1981) in effect at the time of his discharge required an entry in item 18 (Remarks) to show a list of enlistment periods for which a DD Form 214 was not issued. For example: Immediate reenlistments this period: 761210-791001; 791002-821001. b. The version of the regulation (2 October 1989) in effect after his discharge stated that the first entry in block 18 lists reenlistment periods for which a DD Form 214 was not issued, if applicable, e.g., "Immediate reenlistments this period: 761218-791001; 791002-821001." However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "Honorable," the following statement will appear as the first entry in block 18, "Continuous Honorable Active Service From (first day of service for which a DD Form 214 was not issued, e.g., 761218) Until (date before commencement of current enlistment, e.g., 821001); then enter the specific periods of reenlistments as prescribed above. DISCUSSION: 1. The applicant's records show he committed a serious offense (wrongfully using illegal drugs) while holding an NCO grade. Accordingly, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. Based on his indiscipline, the separation authority determined that his service did not meet the standards of acceptable conduct and performance of duty for Army personnel or rise to the level required for an honorable discharge. 3. While the applicant's service was unsatisfactory during his second reenlistment, he served honorably throughout his initial enlistment and first reenlistment. a. The regulation in effect at the time of his discharge required an entry in the Remarks block to show a list of enlistment periods for which a DD Form 214 was not issued. This was done in his case. b. A subsequent version, in effect after his discharge, added another entry in addition to the immediate reenlistment periods. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "Honorable," the Remarks block would include an entry that reads "Continuous Honorable Active Service From (first day of service for which a DD Form 214 was not issued, e.g., 761218) Until (date before commencement of current enlistment, e.g., 821001). His DD Form 214 may be amended to document his continuous honorable active service from the date of his initial enlistment to the date before commencement of his second reenlistment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004182 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004182 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2