ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  12 May 2020DOCKET NUMBER:  AR20190009637 


APPLICANT REQUESTS: 

.Upgrade his general discharge under honorable conditions to honorable

.In effect, correct his DD Form 214 (Certificate of Release or Discharge fromActive Duty) by amending item 12a (Date Entered AD (active duty) This Period)to show the date he entered the U.S. Army Reserve (USAR) Delayed EntryProgram (DEP)



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

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

.DD Form 214



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10 (ArmedForces), United States Code (USC), section 1552 (b) (Correction of Military Records:Claims Incident Thereto).  However, the Army Board for Correction of Military Records(ABCMR) 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, in effect, he was told his USAR DEP counted as in-servicetime; it is not reflected on his DD Form 214.  In addition, the discharge officer told himhe could apply for an honorable discharge after 7 years.

3.The applicant's service records show:

a.He enlisted into the USAR DEP on 6 November 1980; on 24 June 1981, he wasdischarged from the USAR DEP and enlisted into the Regular Army for a 3-year term. His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United 
States) includes the following entry in item 10b (Remarks):  "I understand my period of time in the DEP is creditable for pay purposes upon enlistment on active duty.  I also understand that this time is not counted toward fulfillment of my military service obligation or commitment."  On completion of initial training, orders assigned him to Alaska; he arrived on 13 October 1981.   

b.On 3 June 1982, the applicant accepted nonjudicial punishment (NJP) underArticle 15, Uniform Code of Military Justice, for two specifications of willfully disobeying the order of a staff sergeant and one specification of failing to go to unit formation at the time prescribed. 

c.Effective 24 June 1982, his chain of command promoted him to private first class(PFC)/E-3.  

d.On 16 December 1982, he accepted NJP for being absent without leave (AWOL)from 8 until 9 December 1982; punishment included reduction from PFC to private/E-1. 

e.On 17 December 1982, the applicant's commander advised him in writing of hisintent to separate him under chapter 13 (Separation for Unsatisfactory Performance), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel); the commander's reasons for this action were the applicant's defective attitude and his inability to expend effort effectively. 

f.On 21 December 1982, after consulting with counsel, the applicant acknowledgedcounsel had advised him of the reasons for his pending separation action, and affirmed counsel had informed him of his rights and the effect of waiving those rights.  He elected not to submit statements in his own behalf. 

g.At some point prior to 27 December 1982, the separation authority approved thecommander's recommendation and directed the applicant's general discharge under honorable conditions; on 27 December 1982, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 6 months, and 27 days of his 3-year enlistment contract; he was awarded or authorized the Army Service Ribbon and a marksmanship qualification badge. 

4.Regarding the applicant's request to amend his DD Form 214 to show the period heserved in the USAR DEP, AR 635-8 (Separation Processing and Documents), currentlyin effect, states the DD Form 214 is a summary of the Soldier's most recent period ofcontinuous active duty.  Separating USAR Soldiers who are not on active duty do notreceive a DD Form 214.

5.The applicant essentially states he is requesting this upgrade because he was toldhe could apply after 7 years.

a.Per AR 635-200, commanders were to initiate separation action against Soldierswho were a disruptive influence, and the circumstances forming the basis for the separation action would likely recur.  Soldiers separated under this provision could be furnished either an honorable or general discharge under honorable conditions.   

b.In reaching its determination, the Board can consider the applicant's petition, hisservice record, and his statements in light of the published guidance on equity, injustice, or clemency. 

BOARD DISCUSSION: 

1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records, regulatory requirements, and published DoD guidance forconsideration of discharge upgrade requests.  The Board considered the applicant’sstatement, his record of service, the frequency and nature of his misconduct and thereason for his separation.  The Board found insufficient evidence of in-service mitigationto overcome the misconduct.  The Board determined that the applicant’s discharge wascorrect, just, and equitable based on the facts in his separation.  Based on apreponderance of evidence, the Board determined that the character of service theapplicant received upon separation was not in error or unjust.
2.There is no error in not showing the applicant’s USAR Delayed Entry information onhis DD Form 214.  The DD Form 214 records active duty and delayed entry for activeduty.  The applicant’s delayed entry was for USAR from which he was discharged priorto enlisting in the Regular Army.




BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : 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. 


X 


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 3 years after discovery of the alleged error or injustice.  Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.AR 635-200, in effect at the time, prescribed policies and procedures for enlistedadministrative separations.

a.Paragraph 3-7a stated an honorable discharge was separation with honor.Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate.  Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense.  An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time.  It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. 

b.Under chapter 13, commanders were required to initiate separation action forSoldiers who clearly established they would not develop sufficiently to become a satisfactory Soldier, or because it was likely the Soldier would be a disruptive influence and the circumstances forming the basis for the separation action would recur.  Soldiers separated under this provision could be furnished either an honorable or general discharge under honorable conditions.   

3.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.  This guidance does not mandaterelief, but rather provides standards and principles to guide Boards in application of theirequitable 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 arelevant error or injustice was committed, and uniformity of punishment.  Changes to thenarrative reason for discharge and/or an upgraded character of service granted solelyon equity, injustice, or clemency grounds normally should not result in separation pay,retroactive promotions, and payment of past medical expenses or similar benefits thatmight have been received if the original discharge had been for the revised reason orhad the upgraded service characterization.

4.AR 635-8, currently in effect, states the DD Form 214 is a summary of the Soldier'smost recent period of continuous active duty.  Separating USAR Soldiers who are noton active duty do not receive a DD Form 214.

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