ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  28 March 2019 DOCKET NUMBER:  AR20170001974 


APPLICANT REQUESTS:  The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to honorable and correction of his DD Form 214 (Certificate of Release or Discharge) to show the Army Achievement Medal. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he was awarded the AAM and it is not listed on his DD Form214.

3.On 17 January 1979, the applicant enlisted in the Regular Army.  On 19 July 1982he was honorably discharged for immediate reenlistment (REENL).  On 20 July 1982,he reenlisted for a period of 3 years in the rank of specialist (SPC/E4), which is thehighest grade he held.

4.A review of his record shows he served one overseas tour in Germany from 25 June1981 to 10 June 1984 and he received nonjudicial punishment on three occasions:

.12 July 1982 for disrespecting an officer [1st REENL period]

.28 February 1984 for wrongful use of marijuana [2nd REENL period)

.26 March 1985 for wrongful use of marijuana, as a result he was reduced toprivate first class (PFC/E3) [2nd REENL period]



4.On 28 March 1985, the applicant's commander notified him of the intent to separatehim prior to his expiration term of service under the provisions of chapter 13, ArmyRegulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-2 for
unsatisfactory performance based on receiving NJP three times. The commander notified him of his available rights and advised the applicant he could receive a UOTHC characterization of service.  

a.The applicant acknowledged his rights, advised he had been consulted bycounsel, waived the right to an administrative board and indicated he would not be submitting a statement on his own behalf.  

b.The appropriate authority directed the applicant be discharged with a general,under honorable conditions.  









5.On 10 April 1985, the applicant was discharged accordingly. He served 6 years, 2months and 24 days of active service.  His DD Form 214 does not show the AAM; item18 (Remarks) contains the entry "Immediate reenlistment this period:  7901017 –820719; 820720 – 850410.6.The applicant indicates he provided a copy of his certificate with his DD Form 149;however it was not available for review.  His record is void of published orders or otherevidence showing award of the AAM.  An analyst with the Army Review Boards Agencyattempted to complete the record by contacting he applicant to obtain a copy of thecertificate with no success.7.Army Regulation 635-5 states for Soldiers who have previously reenlisted withoutbeing issued a DD Form 214 and who are later separated with any characterization ofservice except “honorable,” enter “CONTINUOUS HONORABLE ACTIVE SERVICE FROM" and specify the appropriate dates.8.Army Regulation 635-200 states members were separated for unsatisfactoryperformance when, in the commander's judgment the member would not become asatisfactory Soldier, would have an adverse impact on military discipline, good order,and morale, be disruptive influence in the future, the basis for separation would continueto recur or the ability of the service member to perform effectively in the future, includingpotential for advancement or leadership, was unlikely.   Service of Soldiers separatedbecause of unsatisfactory performance was characterized as honorable or underhonorable conditions.9.His record shows he was separated due to receiving NJP on three occasions.  Hisservice for his second reenlistment was characterized as under honorable conditions(general).  In reaching its determination, the Board can consider the applicant’s petitionand his service record in accordance with the published equity, injustice, or clemencyguidance.



BOARD DISCUSSION: 

After reviewing the applicant and all supporting evidence, the Board found that partial relief was warranted.  Based upon the applicant completing his first term of service honorably, the Board recommended that Block 18 of the DD214 annotate his Continuous Honorable Service. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

:x :x :x GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 


1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by adding thefollowing additional statement to block 18 (Remarks) of his DD Form 214:  “Continuoushonorable active service from 19790117 - 19820719.”2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to upgrading the characterization of his discharge underother than honorable conditions and additional of an AAM to his record.

XCHAIRPERSON

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. 


REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within three 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 three-year statute oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.Army Regulation 635-200 (Personnel Separations, Enlisted Personnel), in effect atthe time, set forth the basic authority for the administrative separation of enlistedpersonnel.

a.Chapter 13, paragraph 13-2a provided for separation of individuals due tounsatisfactory performance when, in the commander's judgment:   

.the individual would not become a satisfactory Soldier

.retention would have an adverse impact on military discipline, good order,and morale

.the service member would be a disruptive influence in the future

.the basis for separation would continue or recur

.the ability of the service member to perform effectively in the future, includingpotential for advancement or leadership, was unlikely



b.Service of Soldiers separated because of unsatisfactory performance wascharacterized as honorable or under honorable conditions.  

c.An honorable discharge was a separation with honor and entitled the recipient tobenefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.   

3.Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, andadministrative instructions concerning individual and unit military awards.  Thisregulation provides that the AAM is awarded to any member of the Armed Forces of theUnited States, who while serving in a non-combat area on or after 1 August 1981,distinguished themselves by meritorious service or achievement. As with all personaldecorations, formal recommendations, approval through the chain of command, andannouncement in orders are required.

4.Army Regulation 635-5 (Personnel Separations – Separation Documents)prescribes the separation documents prepared for Soldier upon retirement, discharge,or release from active military service or control of the Army.  Subparagraph © statesthat for enlisted Soldiers with more than one enlistment period during the time covered
by the DD Form 214 enter “IMMEDIATE REENLISTMENTS THIS PERIOD” and specify the appropriate dates.  For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “honorable,” enter “CONTINEOUS HONORABLE ACTIVE SERVICE FROM” (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment).  Then enter the specific periods of reenlistments as prescribed above. 

5.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  BCM/NRs may grant clemency regardless of the type of court-martial.However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which maybe warranted based on equity or relief from injustice.

a.This guidance does not mandate relief, but rather provides standards andprinciples to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on 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.   

b.Changes to the narrative reason for discharge and/or an upgraded character ofservice 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.