ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 September 2019 DOCKET NUMBER: AR20180010732 APPLICANT REQUESTS: * completed periods of continuous honorable service be reflected in his DD Form 214 (Certificate of Release or Discharge from Active Duty) * a personal appearance before the Board 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, 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 would like his DD Form 214 to reflect his completed honorable periods of service for the purpose of using benefits earned prior to the last enlistment. He indicated the discharge counselor never corrected his honorable period of service and did not properly counsel him as to having earned benefits based upon his completed honorable periods of service. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 June 1984. b. His periods of foreign service included: * Alaska from 1 March 1986 to 19 April 1989 * Southwest Asia from 1 September 1990 to 11 October 1990 and 7 February 1991 to 1 March 1991 * Germany from 6 September 1992 to 31 August 1995 c. An arrest warrant, dated 7 November 1997, noted the applicant was charged with sexual exploitation of children. The attachment provides additional details of the events leading to his arrest warrant. d. On 29 January 1998, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for commission of a serious offense. The reasons for his proposed action were that between 4 November 1997 and 6 November 1997 the applicant illegally transmitted images of children engaged in sexual activity, in violation of Section 2252, Title 18, United States Code. e. On 29 January 1998, after consulting with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * he could request consideration of his case before an administrative separation board, which he elected to request * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge f. On 3 February 1998, the immediate commander initiated separation action against the applicant for serious acts of misconduct. He recommended that his period of service be characterized as under other than honorable conditions. The intermediate commanders recommended approval. g. On 19 February 1998, an administrative separation board was held and the board found that the applicant had committed a serious a offense to wit: illegal transmitting of child pornography. The board recommended he be discharged from the service because of commission of a serious offense with an under other than honorable conditions discharge. h. On 5 March 1998, consistent with findings and recommendations of the board, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 14, AR 635-200, paragraph 14-12c for commission of a serious offense. He would be issued a Under Other than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted grade. i. On 20 March 1998, he was discharged from active duty with a general, under honorable conditions characterization of service. His DD Form 214 shows he completed 13 years and 9 months of active service. It also shows in Block 18 (Remarks): * continuous honorable service from 21 June 1984 to 13 November 1991 * immediate reenlistments periods of 21 June 1984 to 6 September 1988, 17 March 1989 to 13 November 1991, and 14 November 1991 to 23 April 1995 * extension of Service was at the request and for the convenience of the Government 4. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 5. By regulation (AR 635-8), a. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. b. 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). BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. Block 18, on his DD Form 214 for the period ending 20 March 1998 already reflects his continuous period of honorable service. The Board agreed there was no error or injustice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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) 635-8 (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). 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010732 5 1