IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150008685 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, in effect, a separate/corrected DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting his honorable service during his first enlistment. 2. The applicant states he served honorably during the first three years and he received an Honorable Discharge Certificate. At the time of his discharge on 5 October 1993, for the purpose of immediate reenlistment, he held the rank/grade of specialist four (SP4)/E-4. He appealed to the Army Discharge Review Board (ADRB) to upgrade his second enlistment but the ADRB denied his request despite having enlisted in the Army National Guard. Nonetheless, he received an honorable discharge for the first period and he got the certificate for that but has since misplaced it. As a result, to this day, he is unjustly denied health benefits. 3. The applicant provides DD Form 214, ending on 6 August 1984. 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 2 October 1980 and he held military occupational specialty 71L (Administrative Specialist). He served in Korea from May 1980 to May 1982. He was advanced to private first class (PFC)/E-3 in May 1982 and to SP4/E-4 in October 1982. 3. He was honorably discharged in the rank/grade of SP4/E-4 on 6 October 1983 for the purpose of immediate reenlistment in the RA. He completed 3 years and 3 days of active service during this period. 4. He immediately reenlisted in the RA for 3 years on 7 October 1983. He was assigned to the 34th Engineer Battalion at Fort Riley, KS. 5. On 18 January 1984, he was confined at Junction City Jail after having been arrested by civil authorities for failing to show up to court for the civilian offense of driving without a license and receiving a ticket. He was released from confinement and returned to military control on 1 February 1984. 6. On 15 May 1984, he departed his unit in an absent without leave (AWOL) status. However, he returned to military control on 17 May 1984. 7. On 25 April 1984, he was convicted by a summary court-martial of one specification of disobeying a lawful order from a superior officer and one specification of wrongfully using marijuana. The court sentenced him to a reduction to PFC/E-3, forfeiture of pay, and restriction. The sentence was approved. 8. On 19 June 1984, he was again convicted by a summary court-martial of one specification of being AWOL from 15 to 17 May 1984, two specifications of failing to go at the time prescribed to his appointed place of duty, and one specification of breaching the peace by wrongfully engaging in a fist fight. The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of pay, and confinement at hard labor for 14 days. The convening authority approved it. 9. He was confined in the hands of military authorities from 20 to 29 June 1984. 10. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records contain: a. Orders 151-6, issued by Headquarters, 1st Infantry Division, Fort Riley, on 6 August 1984 ordering his discharge from the Army, effective 16 August 1984. b. A DD Form 214 that shows he was discharged on 6 August 1984 under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct – commission of a serious offense, in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service. This form also shows he completed a total of 9 months and 5 days of active duty during this period and he had 3 years and 3 days of prior active service. It also shows: * he was awarded the Overseas Service Ribbon, Army Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar * he had lost time from 5 to 6 April 1981, 18 to 31 January 1984, 15 to 15 May 1984, and 20 to 28 June 1984 * in the Remarks block, the entry "Immediate reenlistment this period 801002-831006, 831007-840806" 11. On 21 January 1999, at a formal hearing (AR1999017372), the ADRB reviewed his discharge and heard his testimony but determined it was proper and equitable. The ADRB voted to deny his request. 12. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 13. 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. Effective 1 October 1979, military personnel who were discharged for the purpose of immediate reenlistment were no longer issued a separate DD Form 214. A breakdown of entries in item 12 is as follows: * Item 12a (Date Entered Active Duty This Period) - shows the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued * Item 12b (Separation date This Period) - shows the Soldier’s transition/separation date * Item 12c (Net Active service This Period) - shows the total active service between items 12a and 12b, less lost time * Item 12c (Total Prior Active Service) - shows prior active service * Item 18 (Remarks) - shows 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 AND CONCLUSIONS: 1. With respect to the character of service: a. The applicant’s record is void of the complete facts and circumstances that led to his discharge. However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 6 August 1984 under the provisions of chapter 14 of Army Regulation 635-200 for misconduct - commission of a serious offense, in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service. b. Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. c. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. His service did not rise to the level required for an honorable or a general discharge. 2. With respect to the record of service, effective 1 October 1979, military personnel who were discharged for the purpose of immediate reenlistment were no longer issued a separate DD Form 214. The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty. Consolidation of two or more periods of service into one DD Form 214 was not authorized during the periods referenced. Likewise, separation of one period of continuous active service is also not authorized. Nevertheless, his DD Form 214 contains administrative errors: 3. Item 18 contains his reenlistment periods but does not contain his continuous honorable service from 2 October 1980 to 6 October 1983. 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 to item 18 the entry "Continuous Honorable Service from 19801002-19831006." 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 issuing him a separate DD Form 214 for each period and/or upgrading 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) AR20150008685 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008685 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1