ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 August 2019

	DOCKET NUMBER:  AR20170017887


APPLICANT REQUESTS:  a separate DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his honorable service from 1980 to 1983

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 4 (Enlistment/Reenlistment Document)
* Honorable Discharge Certificate
* DD Form 458 (Charge Sheet)

FACTS:

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

2.  The applicant states he wants a separate DD Form 214 to show his honorable service for the period of 1980 to 1983.  He keeps getting railroad from the Army.  The Army has done nothing to help and he may need to get a lawyer and file a lawsuit.  He served with honor, but keep getting railroaded.  In addition, when you reenlist you have one day of separation and a DD Form 214 for that period covered.

3.  The applicant provides:

   a.  DD Forms 4 (Enlistment/Reenlistment Document) shows he enlisted on 24 July 1980 in the Army Reserves and later enlisted in the Regular Army on 6 October 1980.

   b.  Honorable Discharge /Certificate, which shows he received an honorable discharge on 28 September 1983.
   
   c.  DD Form 458 (Charge Sheet) showing court martial charges were preferred against him on 10 January 1986.  He was charged with one specification of wrongfully distributing some amount of Phendimetrazine, a schedule III controlled substance on or about 20 Oct 1985.

4.  A review of the applicant’s service record shows:

   a.  He enlisted in the Regular Army (RA) on 6 October 1980.

   b.  He was honorably discharged on 28 September 1983 for immediate reenlistment and reenlisted in the RA on 29 September 1983.

  c.  He served in Germany from 3 January 1981 to 27 December 1983.  He also served in Korea from 10 July 1985 to 9 July 1986.
  
   d.  Court martial charges were preferred against him on 10 January 1986.  His 
DD Form 458 shows he was charged with one specification of wrongfully distributing some amount of Phendimetrazine, a schedule III controlled substance on or about 20 Oct 1985.
  
  e.  After consulting with counsel, on 13 February 1986, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation (AR) 635-200, (Personnel Separations - Enlisted Personnel), Chapter 10.  He acknowledges:
  
* he is guilty of the charge against him or of a lesser included offense
* the imposition of a bad conduct or dishonorable discharge
* he did not desire further rehabilitation 
* he has no desire to perform further military service
* he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions
* he may be deprived of many or all Army benefits
* he may be deprived of his rights and benefits of a Veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge

  f.  Consistent with the chain of command recommendations, on 19 February 1986, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade of PVT E-1.
     
  g.  He was discharged on 5 March 1986, under the provisions of Army Regulation 635-200, Chapter 10 for the good of the service in lieu of trial by court-martial. His DD form 214 shows he completed 5 years and 5 months of net active service.  It also shows in:
  
* item 12a (Date of Entry), 6 October 1980
* item 12b (Separation Date This Period) 5 March 1986
* item 12c (Net Active Service This Period), 5 years and 5 months
* item 12 e (Total Prior Inactive Service) 2 months and 8 days
* item 12f (Foreign Service) 3 years 7 months and 20 days

5.  By regulation, the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.

6.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the Board’s 15 year statute of limitations.

7.  The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.   

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found some relief was warranted.  The applicant’s contentions were carefully considered.  The Army ended provided separate DD Forms 214 for immediate reenlistments in October 1979.  The applicant entered active duty in 1980 and had an immediate reenlistment in 1983.  Therefore, he is not eligible to receive a separate DD Form 214 for that period of service.  However, the Board agreed that since he was discharged with a less than honorable character of service that he is authorized to have his continuous period of honorable service reflected on the separation document.

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 a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 6 October 1980 until 28 September 1983.”

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to providing a DD Form 214 for his immediate reenlistment.
	 
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 military records 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 of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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.

   b.  Paragraph 3-7b (General Discharge) states 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 by not sufficiently meritorious to warrant an honorable discharge.  

   c.  Paragraph 3-7c (Under Other than Honorable Conditions) states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service. 
   
   d.  Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

3.  AR  635-5 (Personnel Separations – Separation Documents), in effect at the time states, the DD Form 214 is a summary of a Soldier’s most recent 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.  It also states, the DD form 214 will not be prepared for enlisted members discharged for immediate reenlistment in the RA. 

4.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment).

5.  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 (BCMNRs) 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-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 may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards 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. 

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170017887


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