IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20160012993 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20160012993 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect two years of honorable service from 26 August 1980 through 26 August 1982. 2. The applicant states he is purchasing a home for his family and officials at the Department of Veterans Affairs have requested proof of 2 years of honorable service to be able to reinstate his Certificate of Eligibility. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records. 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DD Form 4 (Enlistment/Reenlistment) * five DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) * discharge packet * DD Form 214 * Army Discharge Review Board denial REFERENCES: 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. 2. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court- martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. b. 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. 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. 4. Army Regulation 635-5 (Separation Documents), in effect at the time, provided guidance for the preparation of the DD Form 214. It states: a. A DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. b. Enter in item 18 (Remarks) a list of enlistment periods for which a DD Form 214 was not issued. Example: Immediate reenlistments this period: 761210-791001; 791002-821001 5. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relative to transition management, to include the preparation of the DD Form 214. Its states: a. A DD Form 214 will not be prepared for Soldiers discharged for immediate reenlistment in the Regular Army. b. For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” and specify inclusive dates for each period of reenlistment in block 18 (Remarks) of the DD Form214. c. For Soldiers who have previously reenlisted without being issued a DD form 214 and are separated with any characterization of service except “Honorable”, enter in block 18 “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. DISCUSSION: 1. While 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. After a period of 1 month and 24 days in the Delayed Entry/Enlistment Program, the applicant enlisted in the Regular Army on 26 August 1980 for a period of 4 years. 3. He accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 July 1982 for the following offenses: * willfully disobeying a lawful order from his superior noncommissioned officer to shave on 16 June 1982 * failing to go at the time prescribed to his appointed place of duty on 16 June 1982 * willfully disobeying a lawful order from his superior noncommissioned officer to clean his weapon on 17 June 1982 * without authority, failing to go at the time prescribed to his appointed place of duty on 18 June 1982 * being disrespectful in language to his superior noncommissioned officer by saying to him, “Kiss my f_______ a__” on 30 June 1982 * being disrespectful in in language toward his superior noncommissioned officer by saying to him, “I don’t need to f______ check man” on 30 June 1982 4. He again accepted NJP under Article 15 of the UCMJ on the following occasions for the following offenses: * 30 August 1982, for unlawfully striking Private First Class C____ on the head with his fist on or about 12 August 1982 * 10 August 1983, for being derelict in the performance of his duties as charge of quarters in that he negligently failed to inspect the barracks for cleanliness and inspect the arms room hourly on 13 July 1983 * 25 January 1984, for absenting himself from his place of duty without authority from on or about 1445 hours, 20 January 1984 until on or about 0630 hours, 21 January 1984 5. On 6 February 1984, his commander recommended the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct. The commander’s specific basis for recommending his separation was a pattern of misconduct resulting in NJP on multiple occasions, counseling statements, his poor attitude and his inability to obey directions and/or regulations. 6. On 9 February 1984, he acknowledged having been advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, its effects, and the rights available to him, including the right to consult with counsel and submit matters in his own behalf. He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He further acknowledged he understood that he may be ineligible for many or all benefits as a veteran if issued a discharge under conditions other than honorable. He requested consideration of his case by a board of officers, personal appearance before a board of officers, representation by consulting counsel, and he submitted statements in his own behalf. His statements are not in his available records for review. 7. An administrative discharge board of officers convened during the period 11-14 May 1984. After carefully considering the evidence before it, the board found the applicant unacceptable for further retention in the military because of a pattern of misconduct and recommended his discharge with the issuance of an Under Other than Honorable Conditions Discharge Certificate. 8. On 31 May 1984, the approval authority approved the board’s findings and recommendations, directing the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 9. His DD Form 214 shows he was discharged on 13 June 1984, under the provisions of Army Regulation 635-200, paragraph 14-12b, for Misconduct – Pattern of Misconduct. He completed 3 years, 9 months, and 18 days of net active service. He did not have any immediate reenlistments this period and his service was characterized as under other than honorable conditions. 10. The applicant applied to the ADRB and on 14 July 1986 determined the characterization of his discharge was both proper and equitable. 11. The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time pertaining to misconduct, the commission of a serious offense, based on reckless driving that resulted in a serious accident. There is no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 12. While current regulatory guidance calls for the annotation on the DD Form 214 of prior periods of honorable service for which a DD Form 214 was not issued, in this case the applicant did not have any prior periods of honorable service, as he served only one enlistment. 13. The evidence of record shows the applicant did not have any prior periods of service whatsoever nor did he ever reenlist. His only enlistment is the term of service accounted for on the DD Form 214, covering the period from 26 August 1980 through 13 June 1984, which shows his character of service as under other than honorable conditions. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012993 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2