BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160000116 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 BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160000116 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. BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160000116 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: a. an upgrade of his discharge from under other than honorable conditions (UOTHC) to general, b. amendment of his narrative reason for separation (alternative not specified), and c. correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show only his first enlistment period of service and removal of any actions or references to his second enlistment period. 2. The applicant states he believes his DD Form 214 should reflect only his first enlistment and everything related to his second enlistment should be deleted. 3. The applicant provides a copy of his DD Form 214. 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 28 August 1986 with a 3-year active duty service obligation[UAu1]. He completed training and was awarded military occupational specialty 76C (Equipment Records and Parts Specialist). 3. He was advanced to the rank of specialist four (SP4) on 1 March 1988. He reenlisted for 2 years on 5 January 1989. 4. On 25 June 1990, the applicant provided a urine sample during a random drug screening that tested positive for cocaine. 5. On 15 August 1990, court-martial charges were preferred against the applicant for wrongful use of cocaine. 6. On 27 August 1990, the applicant consulted with legal counsel who advised him of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge UOTHC, and the procedures and rights available to him. 7. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he understood he could be discharged under conditions other than honorable and furnished a Discharge Certificate UOTHC * he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of a discharge UOTHC 8. On 28 August 1990, the court-martial convening authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of a Discharge Certificate UOTHC and his reduction to the lowest enlisted grade. 9. On 5 September 1990, he was discharged UOTHC. He completed 4 years and 8 days of creditable service. His DD Form 214 shows in: * item 4b (Grade, Rate, or Rank), PV1 * item 4b (Pay Grade), E-1 * item 18 (Remarks), the following entries – * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 860828 UNTIL 890104 * IMMEDIATE REENLISTMENT THIS PERIOD 860828-890104 10. His service records do not indicate he applied to the Army Discharge Review Board within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. It prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. a. The DD Form 214 is a summary of a Soldier's period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service. b. Effective 1 October 1979, DD Forms 214 were no longer issued when Soldiers were discharged for immediate reenlistment. 2. Army Regulation 635-200 sets 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. 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 UOTHC is normally considered appropriate. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 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. DISCUSSION: 1. The applicant's records show he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. 2. The applicant's illegal drug use served to diminish the overall quality of his service below that meriting an honorable or a general discharge. The type and character of the discharge is commensurate with the offense and process for which he requested discharge to avoid trial by court-martial. 3. Effective 1 October 1979, DD Forms 214 were no longer issued when Soldiers were discharged for immediate reenlistment. The remarks block of his DD Form 214 properly shows his continuous honorable active service from 28 August 1986 until 4 January 1989 and his new term of reenlistment beginning 5 January 1989. //NOTHING FOLLOWS// [UAu1]Analyst does not provide documentation to verify this 4 year obligation. ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000116 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000116 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2