IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150013749 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150013749 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 in block 18 of his DD Form 214 the entry "Continuous honorable service 19790420-19811019." 2. The Board further determined that the evidence presented was 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 character of service to general. __________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: 20 September 2016 DOCKET NUMBER: AR20150013749 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 a general discharge. 2. The applicant states he would like to receive medical benefits through the Department of Veteran Affairs (VA). 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 20 April 1979 and he held primary military occupational specialty (MOS) 13B (Cannon Crewman) and secondary MOS 76Y (Unit Supply Specialist). He served in Germany from 29 July 1979 to 14 February 1983. 3. He reenlisted in the RA on 20 October 1981 and upon completion of his overseas tour, he was assigned to Fort Riley, KS. He was promoted to sergeant/E-5 on 4 November 1983. 4. On 16 May 1985, he departed his Fort Riley unit in an absent without leave (AWOL) status and on 15 June 1985, he was dropped from Army rolls as a deserter. He was apprehended by civil authorities in Indian River, MI, on 20 July 1985 and returned to the Personnel Control Facility, Fort Knox, KY. 5. On 30 July 1985, court-martial charges were preferred against the applicant for one specification of being AWOL from 16 May to 20 July 1985. 6. On 31 July 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercions whatsoever by any person * he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he acknowledged he understood if the discharge request was approved, he could be deprived of many or all Army benefits that he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation or to perform further military service * he elected not to submit a statement in his own behalf 7. On 31 July 1985, his immediate and intermediate commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. The intermediate commander opined that the applicant lacked all aspects of being a noncommissioned officer (NCO). He had many reasons why he went AWOL, none of which could cause a dedicated and devoted professional to act as he did. His poor attitude toward rehabilitation would fail to make him a productive Soldier. 8. On 5 August 1985, the separation authority approved the applicant's request for discharge 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 discharge and reduction to the lowest enlisted grade. Accordingly, he was discharged on 4 September 1985. 9. The DD Form 214 he was issued at the time shows he was discharged for the good of the service - in lieu of a court-martial with a characterization of service of under other than honorable conditions. This form further confirms he completed 6 years, 2 months, and 11 days of creditable active service. His DD Form 214 also shows in: * block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) he was awarded or authorized: * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Army Service Ribbon * Overseas Service Ribbon * NCO Professional Development Ribbon * Army Good Conduct Medal (2nd Award) * block 18 (Remarks) shows excess leave of 36 days from 31 July 1985 to 4 September 1985 and “Reenlistment this period: 811020” 10. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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. 2. AR 635-5 (Separation Documents) prescribed the separation documents which were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing the DD Form 214. The Remarks block is used for entries required by the Department of the Army for which a separate block is not available on the form and for completing entries that are too long for their blocks. a. The version of the regulation (1 July 1981) in effect at the time of his discharge required an entry in block 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: 1. With respect to the overall character of service: a. The applicant's record shows he was charged with the commission of an offense (being AWOL) punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 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. b. He was advised of his rights and acknowledged his decision could impact his potential VA benefits. He chose the discharge in lieu of a court-martial that could have adjudged a bad conduct discharge. c. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. d. Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also renders his service unsatisfactory. His service during his second enlistment does not rise to the level required for a general discharge. 2. With respect to his first period of service: a. At the time of discharge in September 1985, the regulation only required an entry in block 18 pertaining to enlistment periods for which a DD Form 214 was not issued. Block 18 of his DD Form 214 shows he reenlisted on 20 October 1981. b. After he was discharged the regulation was changed. 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," a statement will appear as "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) as well as the specific periods of reenlistment as prescribed above. In his case, his continuous honorable service from 20 April 1979 to 19 October 1981 is not shown in block 18. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013749 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013749 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2