IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150011803 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150011803 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________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. IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150011803 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 (UOTHC) discharge to an honorable discharge (HD). 2. The applicant states: a. He completed his first term and never received his HD. If he had, he would now be eligible for services through the Department of Veterans Affairs (VA) Medical Center. b. Upon reenlisting, he was due to be deployed to Germany. At that time, he was struggling with a drug problem and unable to get help. c. Prior to transferring to Germany, he went absent without leave (AWOL). He was only charged with that upon turning himself in. d. Upon his discharge from the Army with a court-martial, he was told that he could still go and get medical care at the VA. 3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 9 August 1994. 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 had prior Army National Guard service. 3. On 2 October 1989, the applicant enlisted in the Regular Army (RA). 4. A DA Form 2-2 (Insert Sheet to DA Form 2-1 (Personnel Qualification Record)), shows on 29 June 1990, the applicant was charged at a summary court-martial (SCM) for the wrongful use of cocaine between on or about 25 April 1990 to on or about 3 May 1990 and for the wrongful use of marijuana between on or about 25 April 1990 to on or about 3 May 1990. He was found guilty and was reduced to the pay grade of private (PVT) and confined for 20 days. 5. The highest grade he attained was sergeant/pay grade E-5. 6. On 19 January 1993, the applicant received nonjudicial punishment for being AWOL. He was reduced to the pay grade of specialist (SPC)/E-4, forfeiture of pay in the amount of $619.00 per month for two months (suspended). 7. The applicant immediately reenlisted on 10 May 1993. 8. A DA Form 4187 (Personnel Action) shows the applicant was AWOL from his unit on 20 April 1994. 9. A DA Form 4187 shows he surrendered to military authorities at Fort Campbell, KY, on 28 June 1994. 10. A memorandum issued by the Special Processing Company, Personnel Control Facility, Fort Knox, KY, undated, shows: a. The applicant knowingly, willingly, and voluntarily declared the he was AWOL from the Army from 20 April 1994 to 28 June 1994. b. He made this admission for administrative purposes only so he may process out the Army and acknowledged that in doing so, he may be given an UOTHC discharge. c. He acknowledged that his military defense counsel had explained to him to his complete understanding and satisfaction, all the legal and social ramifications of that type of discharge and what it will mean to him in the future. 11. Orders 210, issued by Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, KY, dated 1 August 1994 show he was discharged from the RA with an effective date of 9 August 1994. 12. The applicant provides a copy of his DD Form 214 showing he was discharged on 9 August 1994, in lieu of a trial by court-martial. He completed 4 years, 7 months, and 14 days of net active service with three periods of AWOL from 21 June to 5 July 1990, on 23 December 1993, and from 20 April to 27 June 1994. His service was characterized as UOTHC. Item 18 (Remarks) of his DD Form 214 shows ?Continuous honorable active service from 891002 to 930509.? He served in Southwest Asia from 12 September 1990 to 27 March 1991. 13. On 14 May 2008, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations; however, his request was denied. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set 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 at any time after the charges have been preferred. The written request must include the individual’s admission of guilt. A discharge under other than honorable conditions was normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. 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. d. Paragraph 16-3, then in effect, states, in pertinent part, that when a Soldier is accepted for immediate reenlistment he will be discharged and reenlisted on the day following discharge. The regulation further states that the service of a Soldier discharged per paragraph 16-3 will be characterized as honorable unless entry-level separation is required under chapter 3, section III. 2. Army Regulation 635-5 (Separation Documents), then in effect, governed the preparation of the DD Form 214. It stated, in pertinent part, that effective 1 October 1979, DD Forms 214 would no longer be issued for immediate reenlistments and that all service would be continuous from the date the last DD Form 214 was issued or from the start of the first enlistment term. In item 18 enter the reenlistment periods for which a DD Form 214 was not issued. For Soldiers who previously reenlisted without being issued a DD Form 214 who are being separated with any characterization of service except ?Honorable,? the first entry will state, ?Continuous honorable active service from (first day of service for which a DD Form 214 was not issued) until (date before commencement of current enlistment.? DISCUSSION: 1. The applicant contends he completed his first enlistment term of service and did not receive an HD. A review of his DD Form 214 shows his first enlistment period from 2 October 1989 to 9 May 1993 is recorded as honorable on his DD Form 214 in item 18. After 1 October 1979, only one DD Form 214 was issued for a Soldier?s complete period of continuous active service. Per regulatory requirements, a Soldier who received any characterization except “Honorable” would have the honorable service period annotated in item 18 of his or her DD Form 214. The applicant’s DD Form 214 correctly shows his honorable service in item 18. 2. During his second enlistment period, the applicant was charged with misconduct punishable under UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. 3. His separation was in compliance with applicable regulations; there is no indication of procedural or administrative errors which would have jeopardized his rights. The type of discharge directed was appropriate. The UOTHC discharge is for his second period of service from 10 May 1993 to 9 August 1994. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011803 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011803 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2