IN THE CASE OF: BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150015684 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: 29 November 2016 DOCKET NUMBER: AR20150015684 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 of his DD Form 214 the entry "Continuous honorable service 19800222-19820913." 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. _____________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: 29 November 2016 DOCKET NUMBER: AR20150015684 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 characterization of service to honorable. 2. The applicant states he was told at the time of his discharge that his characterization of service would be automatically upgraded to honorable. He completed nearly 3 years of active service serving overseas and stateside with the 101st Airborne Division. 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 22 February 1980. He completed training and was awarded military occupational specialty 11B (Infantryman). He served in Germany from 8 June 1980 to 6 February 1982. 3. Upon completion of his Germany tour, he was reassigned to the 1st Battalion, 503rd Infantry, at Fort Campbell, KY. He was honorably discharged on 13 September 1982 for immediate reenlistment. 4. He reenlisted for a 3-year term on 14 September 1982, holding the rank/grade of specialist four/E-4. 5. On 8 January 1983, he departed his unit in an absent without leave (AWOL) status and on 7 February 1983, he was dropped from the Army rolls as a deserter. He surrendered to military authorities at Fort Dix, NJ, on 14 March 1983. 6. On 14 March 1983, court-martial charges were preferred against him for one specification of AWOL from 8 January 1983 to 14 March 1983. 7. On 16 March 1983, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for offenses punishable with a bad conduct discharge, 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 voluntary discharge under the provisions chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service – in lieu of trial by court-martial. In his request for discharge, he acknowledged: * he understood by requesting 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 or a dishonorable discharge * he was making this request of his own free will and he had not been subjected to any coercion * he had been advised of the implications that were attached to his request * he understood that 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 Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws 8. During an interview, he stated that he went AWOL because he was in school and his wife was pregnant and had a nervous breakdown. The unit or school would not release him to go see her. He talked to the cadre and they told him they would only release him if she were hospitalized. His wife was not hospitalized and he did not contact the Red Cross. 9. On 21 March 1983 the immediate and intermediate commanders recommended approval with the issuance of a discharge under other than honorable conditions. 10. On 25 March 1983, following a legal review and consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge in accordance with AR 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial and ordered him reduced to the lowest enlisted grade, if applicable, and issued an Under Other Than Honorable Discharge Certificate. On 29 April 1983, the applicant was accordingly discharged. 11. The DD Form 214 he was issued shows he was discharged for the good of the service – in lieu of a court-martial with an under other than honorable conditions character of service. He completed a total of 3 years and 2 days of active service and he had lost time from 8 January to 13 Mach 1983 and excess leave from 16 March to 29 April 1983. Additionally: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Grenade Bar, Overseas Service Ribbon, Army Service Ribbon, and Air Assault Badge * Item 18 (Remarks) shows his immediate reenlistment "800222-820913" and excess leave of 44 days from "830316-830429" 12. 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 the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Under Other Than Honorable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. b. 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. 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 DD Form 214. The Remarks block is used for entries required by Department of the Army for which a separate item 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 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: 1. With respect to the overall character of service: a. The applicant was charged with the commission of an offense 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. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. c. The Army does not now have nor did it ever have a policy wherein the characterization of service is upgraded due to passage of time. d. 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. e. 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. With respect to his first period of service: a. At the time of his discharge in April 1983, the regulation only required an entry in item 18 pertaining to enlistment periods for which a DD Form 214 was not issued. His first enlistment from 22 February 1980 to 13 September 1982 is already listed in item 18 of his DD Form 214, in compliance. b. After his discharge 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 reenlistments as prescribed above. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015684 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015684 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2