IN THE CASE OF: BOARD DATE: 23 February 2016 DOCKET NUMBER: AR20150008075 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: a.  an upgrade of his discharge under other than honorable conditions (UOTHC) to honorable and b.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his period of honorable service from 1 September 1976 to 21 May 1980. 2. The applicant states: * he was in the Army from 1 September 1976 to 14 October 1981 * he reenlisted on 22 May 1980 and entered his second term of service * his DD Form 214 does not show his first term of service from 1 September 1976 to 21 May 1980 as honorable * the lack of key verbiage on his DD Form 214 or a statement that references his honorable period of service has created personal hardships by being denied Federal and State of Wisconsin veterans' benefits 3. The applicant provides: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 * State of Wisconsin Department of Veterans Affairs letter, dated 2 February 2015 * U.S. Army Human Resources Command (HRC) letter, dated 6 April 2015 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 on 1 September 1976 for a period of 4 years. 3. On 21 May 1980, was honorably discharged for immediate reenlistment. On 22 May 1980, he reenlisted for a period of 3 years. 4. Records show he was counseled on numerous occasions during the period 23 September 1980 to December 1980 for the following: * appearance/needing to shave * misusing a government vehicle * failing to report for morning formation * missing 9 days of school * failing to report for physical training formation * failing to repair * failing to report to duty at the prescribed time on two occasions 5. On 30 December 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty at the prescribed time. His punishment consisted of forfeiture of $100.00 for 1 month, a 60-day suspended reduction from the rank/grade of specialist four/E-4 to private first class/E-3, and 7 days of extra duty. On 9 January 1981, his suspended reduction to the rank/grade of private first class/E-3 was vacated. 6. On 30 April 1981, he accepted NJP under the provisions of Article 15, UCMJ, for violating a lawful general regulation on or about 12 April 1981 by socializing with two enlisted female Soldiers undergoing advanced individual training and having them in his barracks quarters. 7. On 25 June 1981, his commander notified him he was initiating action to separate him for frequent incidents of discreditable nature with civil or military authorities under the provisions of Army Regulation 635-200 (Personnel Separations – Separation Documents). His commander advised him of his rights. 8. On 2 July 1981, he accepted NJP under the provisions of Article 15, UCMJ, for failing to obey orders by fraternizing with a trainee on or about 30 May 1981 and getting on a truck on or about 23 June 1981. 9. On 2 September 1981, he was found to meet medical retention standards, to be mentally responsible, and to have the mental capacity to understand and participate in board proceedings. 10. On 16 September 1981, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights. 11. On 7 October 1981, the separation authority waived further counseling and rehabilitative requirements and approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, due to misconduct (frequent incidents of a discreditable nature with military authorities). The separation authority directed characterization of his service as UOTHC. 12. On 14 October 1981, he was discharged accordingly. His DD Form 214 shows he completed 5 years, 1 month, and 13 days of creditable active military service. 13. Item 18 (Remarks) of his DD Form 214 shows the entry, "IMMEDIATE REENLISTMENT THIS PERIOD: 800522-811014 [22 May 1980-14 October 1981]. NOTHING FOLLOWS." 14. On 1 January 1983, the Army Discharge Review Board denied his request for an upgrade of his discharge. 15. He provided a letter from HRC, dated 6 April 2015, directing him to the Army Review Boards Agency. 16. He also provided a letter from the State of Wisconsin Department of Veterans Affairs to HRC, dated 2 February 2015, in which that office requested issuance of an AHRC Form 3553-1 (Statement of Service) to confirm his first term of enlistment for the period 1 September 1976 to 21 May 1980 as honorable. (The AHRC Form 3553-1 has been replaced with the DA Form 1506 (Statement of Service – For Computation of Length of Service for Pay Purposes). 17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  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. b.  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. c.  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 is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter. 18. Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time of his separation on 14 October 1981, established standardized policy for preparing and distributing the DD Form 214. It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. Instructions stated to enter a list of enlistment periods for which a DD Form 214 was not issued. Example: "Immediate reenlistments this period: 761210-791010." 19. Army Regulation 635-8 (Personnel Separations – Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance for separation document preparation, distribution, correction, and transition processing. Instructions for completing the DD Form 214 state, in part, to enter the following statements in item 18: * IMMEDIATE REENLISTMENTS THIS PERIOD (specify inclusive dates for each period pf reenlistment) * CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first date of service for which a DD Form 214 was not issued until date before commencement of current enlistment) DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of his discharge UOTHC was carefully considered. 2. There is no evidence of record and the applicant has not provided any evidence showing he was not properly and equitably discharged in accordance with the regulations in effect at the time. His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 3. There is an insufficient evidentiary basis to grant him the requested relief of an upgraded of his UOTHC discharge. 4. The regulation in effect at the time of his separation on 14 October 1981 had no provisions to list prior periods of honorable service. The current regulation provides for the entry of continuous honorable service on the DD Form 214. There is no harm to the Army or to the Soldier to show his continuous honorable active service for the period 1 September 1976 to 21 May 1980 in accordance with current guidance. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____x___ ___x____ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 amending item 18 of his DD Form 214 to add the statement: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19760901-19800521." 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 upgrading his discharge UOTHC. _____________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) AR20150008075 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008075 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1