RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 March 2008 DOCKET NUMBER: AR20070015030 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. Catherine C. Mitrano Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Mr. James E. Anderholm Chairperson Mr. William D. Powers Member Mr. Jerome L. Pionk Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his DD Form 214 (Report of Separation from Active Duty) for the period ending 25 June 1979 be corrected to show his correct length of service and to correct numerous, unidentified errors. He also requests that his discharge under other than honorable conditions be upgraded to honorable. 2. The applicant states that he does not know why he was kicked out. He won a bronze medal running track for the Army. He was in the National Guard for more time than indicated on his DD Form 214. He was reactivated for almost 3 years. He was just horsing around, wrestling, with a friend and it became serious for reasons unknown to the applicant. He had no court-martial or anything. He was just kicked out in 24 hours. Furthermore, he was a good Soldier. He loved the Army and was happy. He felt he was doing his best considering he was reactivated out of nowhere. They said he missed his National Guard meetings, but they were changed without notifying him. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); a copy of an envelope, postmarked 22 August 2007; and two letters, one dated 13 August 2007 (which provided him a copy of a DD Form 214) and one dated 16 October 2007 (which referred him to this Board), from the National Personnel Records Center. 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 Army National Guard on 22 July 1977. He was ordered to active duty for training (ADT) on 2 October 1977 and was released from ADT on 25 December 1977 after completing 2 months and 24 days of creditable active service and 2 months and 10 days of prior inactive service. 3. The applicant was mailed letters dated 1 September 1977 (signed for by the applicant), 19 January 1978 (returned as unclaimed), and 14 February 1978 (signed for by Ms. Lillian P___) informing him that he had unexcused absences. 4. Effective 20 June 1978, the applicant was honorably discharged from the Army National Guard and ordered to involuntary active duty for 21 months and 6 days for failure to satisfactorily participate in required unit training. He entered active duty on 21 June 1978. 5. On or about 5 October 1978, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for disobeying a lawful command from his superior commissioned officer; for being disrespectful in language toward his superior noncommissioned officer; for being disrespectful in comportment toward his superior noncommissioned officer; for assault by physically grabbing Private First Class S___ and shaking him; and for wrongfully communicating to Private First Class S___ a threat to obtain money “one way or another” while physically shaking him. 6. On 8 January 1979, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully appearing at Building 2933 without his black leather gloves. 7. The court-martial charges and the discharge proceedings packet are not available. 8. On 13 June 1979, the applicant completed a chapter 10 separation physical examination and was found qualified for separation. 9. On 25 June 1979, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge under other than honorable conditions. 10. Item 18 (Record of Service) of the applicant’s DD Form 214 for the period ending 25 June 1979 shows he completed 1 year and 4 days of net active service for that period in item 18(a); 2 months and 24 days of prior active service in item 18(b); 1 year, 2 months, and 28 days of total active service in item 18(c); 8 months and 5 days of prior inactive service in item 18(d); and 1 year, 11 months, and 1 day of total service for pay in item 18(e). He had no lost time. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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. A discharge under other than honorable conditions is normally considered appropriate. 12. Army Regulation 635-200, 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. 13. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant enlisted in Army National Guard on 22 July 1977, entered ADT on 2 October 1977, and was released from ADT on 25 December 1977: 77 10 01 day prior to entering ADT -77 07 22 day enlisted in the USAR = 2 9 + 1 day inclusive = 2 months and 10 days of inactive service prior to entering ADT 77 12 25 day released from ADT -77 10 02 day entered ADT = 2 23 + 1 day inclusive = 2 months and 24 days of active service during ADT 2. The applicant was ordered to active duty on 21 June 1978. He was discharged on 25 June 1979: 78 06 20 day prior to being ordered to active duty -77 12 27 day after he was released from ADT = 5 23 + 1 day inclusive = 5 24 days of additional inactive service in the USAR + 2 10 days of prior inactive service in the USAR = 7 34 or 8 months and 4 days of total inactive service in the USAR 79 06 25 date discharged -78 06 21 date ordered to active duty = 1 00 4 + 1 day inclusive =1 year and 5 days of active service while ordered to active duty 1 year and 5 days of active service + 2 months and 24 days of prior active service =1 year 2 months and 29 days of total active service + 8 months and 4 days of total inactive service =1 year 10 months and 33 days or 1 year 11 months and 3 days of total service for pay 3. Items 18(a), 18(c), 18(d), and 18(e) on the applicant’s DD Form 214 for the period ending 25 June 1979 appear to have been calculated incorrectly. Item 18(a) should read “01 00 05”; item 18(c) should read “01 02 29”; item 18(d) should read “00 08 04”; and item 18(e) should read “01 11 03.” 4. There appear to be no other errors on the applicant’s DD Form 214 for the period ending 25 June 1979. 5. The applicant was involuntarily ordered to active duty on 21 June 1978. He received one Article 15 in October 1978 and a second in January 1979. His discharge packet is not available; however, in the absence of evidence to the contrary it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and that his characterization of service as under other than honorable conditions was commensurate with the offense(s) for which he was charged and his overall record of service. Therefore, there is insufficient evidence that would warrant upgrading his discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF __jea___ __wdp___ __jlp___ 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 the DD Form 214 for the period ending 25 June 1979 of the individual concerned be corrected by amending item 18(a) to read “01 00 05”; item 18(c) to read “01 02 29”; item 18(d) to read “00 08 04”; and item 18(e) to read “01 11 03.” 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 discharge or making any other changes to his DD Form 214 for the period ending 25 June 1979. __James E. Anderholm__ CHAIRPERSON INDEX CASE ID AR20070015030 SUFFIX RECON DATE BOARDED YYYYMMDD TYPE OF DISCHARGE UOTHC DATE OF DISCHARGE 19790625 DISCHARGE AUTHORITY AR 635-200, ch 10 DISCHARGE REASON A70.00 BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 110.00 2. 100.00 3. 4. 5. 6.