IN THE CASE OF: BOARD DATE: 1 December 2015 DOCKET NUMBER: AR20150005508 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 under other than honorable conditions discharge to an honorable discharge. 2. The applicant states that he was assigned to Headquarters Company, 782nd Maintenance Battalion, 82nd Airborne Division, Fort Bragg, NC, from 1984 to 1990. a. He was responsible for maintaining all company hand receipts and sub-hand receipts for the Unit Supply Room. During a change of command inventory in March 1990, the applicant discovered that the outgoing commander (Captain D__ J. G____) had forged/falsified the supply sergeant's name on the DA Form 2062 (Hand Receipt). b. According to the hand receipt the applicant reviewed, the supply sergeant had signed for a radio set for a jeep in April of 1988. The applicant knew this was not true because the radio set that was allegedly signed for was not picked by the applicant from the warehouse until the following year. The applicant was told that he was being held responsible for the missing property. He provided this information to the investigating officer and he also showed him the company property book. c. Shortly thereafter, the battalion commander informed him that he intended to impose nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for pawning a sleeping bag. The applicant refused to accept the NJP and demanded trial by court-martial. d. After another investigation, the charge was dismissed; however, he was then charged with disrespect toward an officer. Again, he demanded trial by court-martial. e. The same day the summary court-martial was to convene, the Division Support Command legal clerk advised him to obtain legal counsel. The trial defense attorney advised him that if he took his case to trial and lost, the applicant could be found guilty of a felony and this would have a substantial adverse effect on him. He decided to submit a request for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. f. He states the same individuals who recommended that the characterization of his service was other than honorable also rated his duty performance on his evaluation reports as "excellent" and "successful." In addition, the company commander and battalion commander endorsed his award recommendation for the Army Commendation Medal before all favorable personnel actions were subsequently stopped. g. He states that he was discharged more than 25 years ago, but he has not allowed the experience that led to his discharge affect him in his post-service efforts. He has earned a Bachelor of Arts degree in Psychology from DePaul University. He has worked as a direct care worker and case manager with the Illinois and Indiana Wards of State and he is currently employed as a middle school social studies teacher. In addition, for the past 12 years, he and his wife have owned and operated a non-profit organization, the Northeast Georgia Homeless Veterans Shelter in Winder, GA. 3. The applicant provides copies of the following documents – * a self-authored statement (summarized above) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * three Certificates of Achievement * DA Form 87 (Certificate of Training) * letter, subject: Distinguished Trooper Selection * DA Form 1059 (Service School Academic Evaluation Report) * Enlisted Evaluation Report (front page) * Noncommissioned Officer (NCO) Evaluation Report * DA Form 4856 (General Counseling Form) (front page) * extract of two statements * chain of command recommendations on his request for separation * DePaul University diploma * Northeast Georgia Homeless Veterans Shelter pamphlet 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 and entered active duty in the Regular Army (RA) on 5 April 1983 for a period of 3 years. Upon completion of training he was awarded military occupational specialty 76C (Equipment Record and Parts Specialist). He completed basic airborne training at Fort Benning, GA, in November 1983. 3. On 29 November 1983, he was assigned to the 82nd Replacement Detachment, 82nd Airborne Division, Fort Bragg, NC. He was further assigned to the 782nd Maintenance Battalion, as follows – * Company E, from 8 December 1983 through 4 June 1986 * Headquarters, Logistics Maintenance Company, from 5 June 1986 through 23 May 1990 4. Records show the applicant reenlisted in the RA on 19 February 1986 for a period of 3 years. He attained the rank of sergeant (SGT)/pay grade E-5 on 5 June 1986 and he reenlisted in the RA on 12 July 1988 for a period of 3 years. 5. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows that, on 15 August 1989, Lieutenant Colonel L__ M. P____, Commander, 782nd Maintenance Battalion, notified the applicant that he was considering whether he should be punished under Article 15, UCMJ for, on 10 January 1989, violating a lawful general order by wrongfully pawning TA-50, in violation of Article 92, UCMJ. It also shows that, on 21 August 1989, after having been afforded the opportunity to consult with counsel, the applicant demanded trial by court-martial. 6. On 19 March 1990, court-martial charges were preferred against the applicant for violation of the UCMJ – * Article 89, for behaving with disrespect toward his superior commissioned officer on 6 December 1989 * Article 90, for willfully disobeying a lawful command from his superior commissioned officer on 6 December 1989 * Article 91 (two specifications) for – * willfully disobeying a lawful order received from a superior NCO on 6 December 1989 * being disrespectful in language and deportment toward a superior NCO who was then in the execution of her duties and contemptuously turning from and leaving the NCO while she was still talking to him on 6 December 1989 * Article 92 (three specifications), for violating a lawful general regulation by – * wrongfully pawning a battle dress uniform coat without prior written approval of his unit commander on 30 January 1989 * wrongfully pawning a military sleeping bag without prior written approval of his unit commander on 23 April 1989 * wrongfully pawning two battle dress uniforms and a military sleeping bag without prior written approval of his unit commander on 10 June 1989 7. On 11 April 1990, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be – * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions. d. He was also advised that he could submit statements in his own behalf and he indicated that statements were not submitted with his request. e. The applicant and his counsel placed their signatures on the document. 8. A memorandum to the Commander, 82nd Airborne Division, dated 11 April 1990, subject: Chain of Command Recommendations on [Applicant's], AR 635-200, Chapter 10, Request for Separation, shows applicant's counsel confirmed that he spoke with the applicant's company, battalion, and brigade commanders concerning the request for separation. He also read any supporting statements to the commanders. The memorandum shows that each commander in the applicant's chain of command recommended approval of the request for discharge with a characterization of service of "OTH" [other than honorable]. 9. On 17 April 1990, the separation authority approved the applicant's request for discharge, reduced him to the lowest enlisted grade, and directed that his service be characterized as under other than honorable conditions. 10. The applicant's DD Form 214 shows he entered active duty this period on 5 April 1983 and he was discharged on 24 May 1990 under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. He had completed 7 years, 1 month, and 20 days of net active service during this period. Item 18 (Remarks) shows, "Immediate Reenlistments This Period: 830405–860218; 860219–880711." (It does not show the period of his continuous honorable active service.) 11. A review of the applicant's military personnel records failed to reveal any evidence that he was tried by a court-martial. 12. On 28 March 1986, the Army Discharge Review Board (ADRB) determined that the applicant was properly and equitably discharged. Accordingly, the ADRB denied the applicant's request for an upgrade of his discharge. 13. In support of his application the applicant provides the following additional documents. a. Headquarters, Office of the Commanding General, 82nd Airborne Division, Fort Bragg, NC, Certificate of Achievement, presented to the applicant for exceptionally meritorious performance as an Equipment and Records Parts Specialist from 1 February 1984 to 2 July 1984. b. Division Support Command (DISCOM) Certificate of Achievement, dated 24 April 1986, presented to the applicant by the Commander, DISCOM, 8nd Airborne Division, for being selected as the Trooper of the Month for the month of April 1986. c. Headquarters, 82nd Airborne Division, Fort Bragg, NC, letter, dated 19 May 1986, subject: Distinguished Trooper Selection, that shows the applicant was commended by the Commanding General for being selected as a Distinguished Trooper of the 82nd Airborne Division and as runner-up in the Division Trooper of the month competition for April 1986. d. Certificate of Training that shows the applicant successfully completed the 120-hour Post Supply Course during the period 21 July 1986 through 8 August 1986. e. 782nd Maintenance Battalion Certificate of Achievement, dated 23 February 1987, presented to the applicant by the battalion commander for outstanding service as a member of the 782nd Maintenance Battalion Funeral Detail on 20 February 1987. f. A DA Form 1059 that shows the applicant successfully completed the Primary Leadership Development Course during the period 28 May 1987 through 26 June 1987. g. The front page of an Enlisted Evaluation Report pertaining to the applicant for duties as Assistant Unit Supply Sergeant covering the period July 1987 through August 1988 (3 rated months and 11 non-rated months). It shows, in pertinent part, that he received the maximum numerical scores for his professionalism and performance. h. NCO Evaluation Report pertaining to the applicant for duties as Equipment and Record Parts Specialist covering the period September 1988 through June 1989 (10 rated months). It shows, in pertinent part, that the rater evaluated his overall potential for promotion and/or service in positions of greater responsibility as "fully capable." The evaluations of the senior rater (executive officer) are not fully shown on the copy of the report the applicant provided. (The report shows that Captain D__ J. G____, Company Commander, served as the reviewer of the report.) i. The front page of a DA From 4856 that shows the applicant received job/duty performance counseling as Assistant Supply Sergeant, for the period July to October 1989, and that he was doing a good job. j. Partial-page copies of two sworn statements, undated and unsigned, that appear to refer to the hand receipt issue and investigation the applicant refers to in his application to the Board. k. DePaul University diploma that shows the applicant satisfactorily completed the course of study for the degree of Bachelor of Arts conferred on 1 October 1994. l. A Northeast Georgia Homeless Veterans Shelter pamphlet that shows it is a non-profit organization that offers transitional housing and a comprehensive array of support services to homeless veterans and their families. 14. AR 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. Chapter  3, 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. Chapter 3, 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. 15. AR 635-5 (Personnel Separations – Separation Documents), in effect act the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. a. Chapter 2 contains guidance for preparation of the DD Form 214. It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File. b. Paragraph 2-1 states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA. It shows item 18 is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks. (1) For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)." (2) However, 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 which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his under other than honorable conditions discharge should be upgraded to an honorable discharge was carefully considered. 2. The applicant's request for discharge under the provisions of AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 3. The evidence of record shows the applicant reenlisted on 12 July 1988. His acts of indiscipline began on 20 January 1989 and included violations of Article 89, Article 90, Article 91 (two specifications), and Article 92 (three specifications), UCMJ. By voluntarily submitting his request for discharge he acknowledged that he was guilty of the charges against him (or of lesser included offenses therein contained), which authorized the imposition of a bad conduct or dishonorable discharge. a. The evidence of record does not support the applicant's contention that he served honorably during the period of service under review (i.e., 12 July 1988 through 24 May 1990). b. The applicant's post-service conduct was considered. However, his post-service conduct is insufficient as a basis for upgrading the characterization of his discharge to an honorable discharge. 4. The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA. a. Records show the applicant enlisted in the RA on 5 April 1983 and he reenlisted in the RA on 19 February 1986 and also on 12 July 1988. b. The evidence of record also shows that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment. c. Item 18 of the applicant's DD Form 214 does not contain such an entry. d. In view of the above, it would be appropriate to correct item 18 of his DD Form 214 to show his continuous period of honorable active service (from 5 April 1983 through 11 July 1988). 5. In view of all of the foregoing, the applicant's DD Form 214 should be corrected as recommended below. 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 adding the following entry to item 18 of his DD Form 214: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19830405 UNTIL 19880711." 2. The Board further determined 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 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) AR20150005508 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005508 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1