ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 June 2021 DOCKET NUMBER: AR20210007417 APPLICANT REQUESTS: * In effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his honorable service from 16 September 1981 to 15 September 1984 * Permission to personally appear before the Board, via video/telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: Two (2) DD Forms 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he served his country with honor and was willing to give his life for freedom. He asserts, in effect, that he should have two discharges: one for the period 16 September 1981 through 15 September 1984 (honorable service) and the other for 16 September 1984 through 17 April 1985 (service that was under other than honorable conditions). 3. The applicant's service records show: a. On 16 September 1981, the applicant enlisted into the Regular Army for 3 years; following initial entry training and a 17-month assignment to Fort Campbell, KY, orders reassigned the applicant to Germany, and he arrived at his unit on 19 August 1983. b. Effective 1 February 1984, the applicant's chain of command promoted him to specialist four (SP4)/E-4. c. Orders, dated 25 June 1984, reassigned the applicant to the separation transfer point at Fort Dix, NJ, effective 13 September 1984, in order to release the applicant from active duty (REFRAD) and transfer him to the U.S. Army Reserve (USAR) Control Group (Reinforcement). On 27 July 1984, the applicant voluntarily requested assignment to a USAR Troop Program Unit (TPU) to complete his remaining military service obligation. d. Orders, dated 14 September 1984, issued by the Frankfurt Regional Medical Center, reassigned the applicant to the Walter Reed Army Medical Center (WRAMC) in Washington, D.C., effective 19 September 1984. On 21 September 1984, the applicant signed an affidavit, in which he affirmed an officer had fully advised him of the rights and advantages of voluntarily remaining on active duty beyond his REFRAD; the purpose of remaining on active duty was so the applicant could complete his hospital care and/or undergo physical disability evaluation. On 11 October 1984, orders revoked the applicant's REFRAD order, issued 25 June 1984. e. The applicant's service records do not contain his separation packet, but there is a DD Form 214, which shows, on 17 April 1985, the applicant was discharged under other than honorable conditions; he had completed 3 years, 7 months, and 2 days of his 3- year enlistment contract. The applicant's DD Form 214 additionally indicates the following: - * Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) – Private/E-1 * Item 12h (Record of Service – Effective Date of Pay Grade) – 10 April 1985 * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and Sharpshooter Marksmanship Qualification Badge with Grenade Bar * Item 25 (Separation Authority) – chapter 10, AR 635-200 * Item 28 (Narrative Reason for Separation) – "For the Good of the Service – In Lieu of Court-Martial" 4. An applicant is not entitled to a hearing before the Board; however, on a case-by- case basis, a panel of the Board or by the Director of ABCMR may authorize a request for a hearing. 5. The applicant requests the correction of his DD Form 214 to show his period of honorable service; the evidence of record shows he served continuously from 16 September 1981 through 17 April 1985, without any reenlistments. The circumstances of the applicant's separation are unknown. a. The absence of the applicant's separation packet means we are unable to determine the specific circumstance(s) that led to his discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of his DD Form 214, the Board presumes the applicant's leadership completed his separation properly. This presumption notwithstanding, the version of the military personnel records regulation in effect at the time, AR 640-10 (Individual Military Personnel Records), required all case files associated with a Soldier's separation to be permanently placed in the affected Soldier's official military personnel file (OMPF). b. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was included as a punishment, could request separation in- lieu of trial by court-martial under chapter 10, AR 635-200; such requests were voluntary and the Soldier had to affirm no one had coerced him/her into accepting this type of discharge. c. Concerning the applicant's request to distinguish his honorable from his under other than honorable service, AR 635-5 (Separation Documents), in effect at the time, contained no provisions for showing continuous honorable service for Soldiers issued a less than honorable character of service. However, the current regulation governing the preparation of DD Forms 214 (AR 635-8 (Separation Processing and Documents)) states: (1) The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. (2) For Soldiers who have previously reenlisted without being issued a DD Form 214, and who are subsequently separated with any character of service except "Honorable," item 18 (Remarks) will show "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service for which a DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." d. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his military service record and documents provided by the applicant. The Board determined the applicant did have honorable service during his first term of enlistment. Therefore, the board granted relief to correction the applicant DD Form 214 to show Continuous Honorable Service during his first term 2. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 by adding: • SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE • CONTINUOUS HONORABLE ACTIVE SERVICE FROM 810915 UNTIL 840915 6/3/2021 X CHAIRPERSON 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, USC, 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 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. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. Commanders were to provide the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was then required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. Paragraph 10-8 (Types of Discharge, Characterization of Service) stated commander normally were to issue an under other than honorable conditions character of service to Soldiers voluntarily requesting discharge under chapter 10; however, the regulation gave separation authorities the authority to direct a general discharge under honorable conditions, when merited. 3. Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, prescribed policies and procedures for the personnel management of enlisted Soldiers. Paragraph 6-11 (Approved for Discharge from the Service under Other than Honorable Conditions) stated, when a general court-martial authority (GCMCA) decided to discharge a Soldier under other than honorable conditions, the GCMCA would concurrently order the reduction of the Soldier to the lowest enlisted grade. Board action was not required for this reduction, and the regulation did not specify how separation authority was to notify the Soldier. 4. 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 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. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence available in the military records, if provided, and any independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. An applicant is not entitled to a hearing before the Board; however, on a case-by- case basis, a panel of the Board or by the Director of ABCMR may authorize a request for a hearing. 6. AR 635-5 (Separation Documents), in effect at the time, contained no provisions for showing continuous honorable service. 7. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. For Soldiers who have previously reenlisted without being issued a DD Form 214, and who are subsequently separated with any character of service except "Honorable," item 18 (Remarks) will show "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service for which a DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." //NOTHING FOLLOWS//