RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 February 2007
	DOCKET NUMBER:  AR20060010090 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Ms. Linda D. Simmons

Member

Mr. Michael J. Flynn

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his Certificate of Release or Discharge from Active Duty (DD Form 214) to show completion of the Allergy/Immunology Technicians Training Program.  He also asks that his mailing address and nearest relative information be corrected.  He also wants the election in Item 
20 to show that he did not request a copy of the DD Form 214 sent to the Department of Veterans Affairs.   The applicant requests to personally appear before the Board.

2.  The applicant contends that the DD Form 214 is non-binding; and that his characterization of service is invalid because he did not sign the form.   

3.  The applicant provides a copy of his DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 29 November 1990, the date of his discharge from active duty.  The application submitted in this case is dated 24 June 2006.

2.  Title 10, U.S. Code, 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 29 November 1988, the applicant enlisted in the Regular Army for 2 years. On 3 May 1989, he extended his enlistment for an additional 12 months.  He completed his initial training and was awarded military occupational specialty 91A1O (Medical Specialist).

4.  On 11 July 1990, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, absent without leave (AWOL) from 
27 March to 4 April 1990; Article 134 (wrongful purchase of eight stolen blank checks); and eight specifications of Article 123 (make a false check).

5.  On 18 October 1990, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

7.  On 6 November 1990, the applicant again went AWOL.

8.  On 27 November 1990, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 29 November 1990, the applicant was discharged accordingly.  He had completed a total of 1 year 10 months and 29 days of creditable active military service and accrued 28 days of time lost due to AWOL.

9.  On 29 November 1990, the applicant was issued a DD Form 214, in absentia. Item 14 (Military Education) of this form shows that he completed the 10 week Medical Specialist Course in 1989; Item 19a (Mailing Address after Separation) and 19b (Nearest Relative) shows his parents and an address in Yuma, Arizona. Item 20 (Member Requests Copy 6 be Sent to Arizona Director of Veteran Affairs) shows "Yes."  Item 21(Signature of Member Being Separated) indicates that the applicant was not available to sign.  Item 24 (character of Service) indicates that the applicant was separated under other than honorable conditions.

10.  The record shows that the applicant completed the 8-week Allergy/Immunology Technicians Training Program in 1989 and worked mainly with allergy panels and tuberculin skin testing while assigned at the Walter Reed Army Medical Center.

11.  Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents.  It provides, in pertinent part, that a DD Form 214 will be prepared for each Soldier being terminated from active duty by reason of administrative separation.  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.  The DD Form 214 is not intended to have any legal effect on the termination of a Soldier's service.  Item 14 (Military Education) is to list formal, in-service training courses successfully completed during the period of service covered by the DD Form 214.  This information is to assist the Soldier in job placement and counseling; therefore, training courses for combat skills are not listed.  Item 19 (Mailing Address after Separation and Nearest Relative) will be provided by the Soldier.  This should be someone who will know the Soldier's location and address at all times.  Item 20 (Request for Forwarding Copy 6) allows the Soldier to send a copy of his DD Form 214 to the Department of Veterans Affairs in his state.  Item 21 (Signature of Soldier Being Separated) indicates that the soldier has reviewed the form and accepted the information as being correct to the best of their knowledge.  When a Soldier is not available (discharged in absentia), the entry "SOLDIER NOT AVAILABLE TO SIGN", will be indicated.  Item 24 (Character of Service) describes the character of the Soldier's service.  "UNDER OTHER THAN HONORABLE CONDITIONS" is one of the acceptable entries permitted for this item.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, in this case, a formal hearing is not required.  If the applicant is not satisfied with the results of the informal Board hearing, he may request reconsideration and provide new evidence that was not previously considered by the Board.

2.  The record clearly shows that the applicant completed the 8-week Allergy/Immunology Technicians Training Program in 1989.  Therefore, his records should be corrected to show completion of this training program.

3.  The applicant's contention that the characterization of his discharge is invalid because he did not sign his DD Form 214 is without merit.  This form is only an administrative record of his service and is not intended to have any legal effect upon the characterization of the applicant's service.

4.  The applicant's contention that the DD Form 214 is a contract; and that it is not binding due to his not having signed it, is not accurate.  The DD Form 214 is no more than an official record of events concerning his active duty service.  The fact that the applicant was AWOL at the time of his separation; hence, not available to review and sign the form does not alter its validity as an official record.  

5.  The applicant's request to change the name and address of his nearest relative in Item 19 of his DD Form 214 should not be granted.  He was AWOL at the time of his discharge; therefore, the clerk processing the DD Form 214 had to make a choice.  The clerk chose to list the applicant's parents.  This was a reasonable choice and served the intended purpose.

6.  The applicant's request to change the response to Item 20 (Requests for 
Forwarding Copy 6) should not be granted.  The processing clerk had to decide what was best for the applicant since he was not available.  The clerk reasonably chose to send a copy to the Department of Veterans Affairs.  There is insufficient justification to delete this entry.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 November 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
28 November 1993.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence or argument, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__BJE___  __MJF__  ___LDS  _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing in Item 14 (Military Education) of the applicant's DD Form 214 that he completed the 8-week Allergy/Immunology Technicians Training Program at Walter Reed Army Medical Center in 1989. 




2.  The Board further determined that 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 making any changes to Items 19, 20, 21, or 24, of the applicant's DD Form 214.  




__      Barbara J. Ellis_________
          CHAIRPERSON




INDEX

CASE ID
AR20060010090
SUFFIX

RECON
 
DATE BOARDED
20070201 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.