SAMR-RB 23 January 2018 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160004286 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 19 December 2017, in which the Board members recommended denial of the applicant's request. 2. Ihave reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 adding to item 18 (Remarks) of his DD Form 214 the following statement: Continuous honorable service from 19770607-19800407. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 23 May 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160004286 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: 19 December 2017 DOCKET NUMBER: AR20160004286 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: 19 December 2017 DOCKET NUMBER: AR20160004286 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 his discharge under other than honorable conditions be upgraded. 2. He states his discharge should be upgraded because he completed two honorable periods of service and he is entitled to veteran’s benefits. 3. He provides no additional evidence. 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 completed an honorable period of active service from 1 August 1974 to 6 June 1977. He was issued a DD Form 214 that shows he completed 2 years, 10 months, and 6 days of net active service this period. 3. He reenlisted in the Regular Army on 7 June 1977 and reenlisted again on 8 April 1980. On 21 January 1981, he was charged with being absent without leave (AWOL) from 11 November 1980 to 19 January 1981 (approximately 69 days). 4. On 21 January 1981, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him. 5. After consulting with 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. He acknowledged he understood: * he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge * he was guilty of the charges against him or of lesser-included offenses which also authorized the imposition of a bad conduct or dishonorable discharge * under no circumstances did he desire further rehabilitation for he had no desire to perform further military service * he could be discharged under other than honorable conditions and furnished an Under Other than Honorable Discharge Certificate 6. On 23 January 1981, the applicant was personally interviewed by his commander and he told his commander he went AWOL because of family problems. His wife had an affair, she was pregnant, and she had run away from home. He went AWOL to find her and he still had not found her. His commander told him he believed he would do better if he remained in the Army and that he would assist him in staying in the Army. The applicant stated he was confused and his only desire was to leave the Army and look for his wife. The applicant was examined by a psychiatrist and was found fit for duty. His commander stated due to the applicant’s attitude toward the Army and his lack of rehabilitative potential he recommended discharge under the provisions of chapter 10, Army Regulation 635-200, and the issuance of an under other than honorable conditions discharge. 7. The separation authority approved his request for discharge for the good of the service and directed his discharge under other than honorable conditions. On 18 February 1982, he was discharged in accordance with the separation authority's decision. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * he completed 3 years, 6 months, and 3 days of net active service this period * he also completed 2 years, 10 months, and 6 days of prior active service * he had lost time from 11 November 1980 to 19 January 1981 8. Item 18 (Remarks) of his DD Form 214 contains the following entries: “IMMEDIATE REENLISTMENT THIS PERIOD: 770607-800407.” 9. There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations. REFERENCES Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It states: a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment under the UCMJ 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. A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct an honorable or a general discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper. 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 AND CONCLUSIONS: 1. The applicant requests his discharge be upgraded because he completed two periods of honorable service. 2. The applicant completed an honorable period of active service from 1 August 1974 to 6 June 1977. He was issued a DD Form 214 for this period of service. He immediately reenlisted on 7 June 1977 and subsequently reenlisted again prior to his under other than honorable conditions discharge on 18 February 1981. 3. The applicant’s honorable service prior to his discharge is noted; however, prior honorable service, regardless of the length, does not, in and of itself, negate misconduct. 4. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. His records show he was charged with being AWOL from 11 November 1980 to 19 January 1981, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ. All requirements of law and regulation were met and his rights were fully protected throughout his discharge process. The characterization of service he received at the end of his final enlistment was commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004286 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004286 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2