BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017532 BOARD VOTE: ____x____ ____x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017532 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Amending Orders 083-1313, issued by the U.S. Army Installation Management Command, Fort Sill, OK, on 24 March 2014, to show his discharge date as 26 March 1999. b. Amending his DD Form 214 to show in: * Item 12b (Separation Date This Period) - "1999  03  26" * Item 12c (Net Active Service This Period) - "0012  01  23" * Item 18 (Remarks) Immediate Reenlistments This Period - "19950809-19990326" and Excess Leave - "499 DAYS: 19971112-19990326" ______________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. BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017532 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 correction of his DD Form 214 (Certificate of Release of Discharge from Active Duty) to show his separation date as an earlier date than 24 March 2014. 2. The applicant states his separation date is incorrect. After his court-martial was approved by the convening authority in February 1998, it went to the appellate authority for review. The appellate review affirmed the findings and sentence in July 1998. A final court-martial order was issued in February 1999. However, the DD Form 214 was not processed until 24 March 2014. 3. The applicant provides: * DD Form 214 for the period ending 24 March 2014 * Special Court-Martial Order Number 1, dated 2 February 1998 * Special Court-Martial Order Number 3, dated 26 February 1999 * Appellate review from the U.S. Army Court of Criminal Appeals * Orders 083-1313, dated 24 March 2014 * DA Form 31 (Request and Authority for Leave) 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) on 4 February 1987 and held military occupational specialty 11B (Infantryman). He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 December 1993. 3. He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments, including Germany and Hawaii. He also served in a designated imminent danger pay area, Haiti, from 7 March 1993 to 4 February 1994, and Somalia, from 10 October 1993 to 12 March 1994. 4. Around February 1997, he was assigned to the U.S. Army Marksmanship Unit, Fort Benning, GA, as a Range Noncommissioned Officer (NCO). 5. On 12 November 1997, he was arraigned and tried by a special court-martial convened by Headquarters, U.S. Army Infantry Center, Fort Benning, for violating the Uniform Code of Military Justice, for one specification of wrongfully using marijuana between 1 and 30 June 1997. 6. He originally pled guilty to the charge and its specification but the military judge did not find his plea to be provident. The court found him guilty and sentenced him to a bad conduct discharge. 7. On 2 February 1998, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed. The record of trial was forwarded to the Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 8. On 21 July 1998, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 9. Special Court-Martial Order Number 3, issued by the U.S. Army Infantry Center, Fort Benning, on 26 February 1999, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed. 10. The applicant was neither discharged nor issued a DD Form 214 at that time. 11. Around December 2013, the applicant contacted the U.S. Army Human Resources Command (HRC) inquiring about his DD Form 214 and he was advised none was issued. 12. His contact with HRC triggered a series of events completed by the U.S. Army Personnel Control Facility (PCF), Fort Sill, OK, (the applicant was never confined). A PCF clerk initiated a DA Form 31 placing the applicant on excess leave from 12 November 1997 to 24 March 2014, and the U.S. Army Installation Management Command, Fort Sill, published Orders 083-1313 on 24 March 2014 ordering the applicant's discharge from active duty effective 24 March 2014. 13. An official at the Fort Sill PCF also administratively issued a DD Form 214 that discharged the applicant in the rank/grade of private/E-1 on 24 March 2014. This form shows he was discharged as a result of court-martial with a bad conduct discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). It shows in: * Item 12a (Date Entered Active Duty (AD) This Period) – 1987-02-04 * Item 12b (Separation Date This Period) – 2014-03-24 * Item 12c (Net Active Service This Period) – 0027-01-24 * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), he was awarded or authorized: * Army Commendation Medal (2nd Award) * Army Achievement Medal (6th Award) * National Defense Service Medal * Armed Forces Expeditionary Medal * Humanitarian Service Medal * NCO Professional Development Medal (2nd Award) * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Expert Infantryman Badge * United Nations Medal * Air Assault Badge * French Forces Commando Badge * Item 18 (Remarks) - "Excess leave creditable for all purposes except pay and allowances – 5,977 Days - 19971112-20140324" REFERENCES: 1. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proof. 2. AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. a. The purpose of the separation document is to provide the individual with documentary evidence of their military service. It is important that information entered on the DD Form 214 be complete and accurate. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty service to include attendance at basic and advanced training. The DD Form 214 will be prepared for all personnel at the time of retirement, discharge, or release from active duty. b. Chapter 2 states for: * Item 12a, enter the date of entry on active duty * Item 12b, enter the date of separation * Item 12c, enter the net service between 12a and 12b, less lost time c. In item 18, for a Soldier who has excess leave status, enter "Excess Leave (Creditable for all Purposes Except Pay and Allowances (specify days and period of time)." DISCUSSION: 1. The applicant was convicted by a special court-martial in November 1997 for wrongfully using marijuana. The convening authority approved the sentence on 2 February 1998 and the appellate review was completed on 21 July 1998. A final order was issued by Fort Benning on 26 February 1999. For unknown reasons, the applicant was not discharged shortly thereafter. 2. Although Soldiers are placed on excess leave following a conviction by a court-martial and while awaiting the appellate review, it does not appear this occurred in his case. Additionally, despite completion of the appellate review and the issuance of a final order, his installation failed to discharge him in what appears to be an administrative error, lack of concern, and inattention to detail; all of which were due to no fault of the applicant. 3. Years later, in March 2014, following his inquiry about his DD Form 214, the PCF created an excess leave form placing him on excess leave from 12 November 1997 to 24 March 2014 (a total of 17 years) and issued him a separation order and a DD Form 214 reflecting the date of discharge as 24 March 2014. While this action appears to have addressed the issues at hand, the date of discharge is arbitrary and capricious. A reasonable discharge date should be closer to the issuance of the final court-martial order, such as 30 days later. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017532 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017532 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2