RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060012705 


	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.


x

	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 the following items to be corrected on her DD Form 214 (Report of Separation from Active Duty):

Item 1 (Last Name- First Name- Middle Name) to show her first and last name as M____ O____W_____ B____;

Item 27 (Remarks) to show the initials of her married name;

Item 29 (Signature of Person being Separated) to include her married name at the end; 

Item 6a (Grade, Rate or Rank) and item 6b (Pay Grade) to show her rank and pay grade as private E-2; and

Item 9d (Effective Date) to show the effective date of her discharge as 1 March 1978.

2.  The applicant also requests that her punishment under Article 86 (Absence without Leave) of the Uniform Code of Military Justice (UCMJ) be dismissed.  

3.  The applicant states that she was married when she joined the military.  She brought this to the attention of her superiors for correction of her military records. She was told that it would be taken care of but it was never done.  She states she experienced constant sexual and emotional harassment from Major (MAJ) U_____ once she arrived at her permanent duty station.

4.  The applicant provides a supplemental letter, dated 21 August 2006; her DD Form 214; a page of her DA Form 2-1 (Personnel Qualification Record); her Insert Sheet to DA Form 2-1; and two marriage certificates.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred on 1 March 1976.  The application submitted in this case is dated 31 August 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.  The applicant’s marriage certificate shows she married E____ P______ B_____ Jr. on 20 August 1974 in Teaneck, New Jersey.

4.  She completed a DD Form 398 (Statement of Personal History), dated
8 January 1975, which does not mention a spouse.  

5.  The applicant underwent a physical examination on 14 January 1975 for enlistment.  Her Standard Form 88 (Report of Medical Examination) shows her first and last name as M____ O____W_____. 

6.  The applicant enlisted in the Regular Army on 24 February 1975 in pay grade E-1.  Her DD Form 4 (Enlistment Contract) shows her first and last name as M____ O____W_____ and her marital status is shown as “S” [single].  

7.  She signed a Record of Emergency Data on 26 February 1975 which shows her first and last name as M____ O____W_____.  Item 9 (Name of Spouse) on this document shows the entry “None.”

8.  The applicant submitted a National Agency Check Request on 28 February 1975 which shows her first and last name as M____ O____W_____.  The document shows the entry “None” in item 9c (Spouse).  

9.  She completed basic training and advanced individual training and was awarded military occupational specialty 76S (Vehicle Material Supply Specialist). The highest grade she achieved was private E-2, date unknown.  

10.  On 10 June 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ for failure to go to her appointed place of duty.  This was in violation of Article 86, UCMJ.  Her punishment consisted of a forfeiture of $25.00 pay for one month.  She did not appeal the punishment.

11.  On 28 July 1975, the applicant accepted NJP under Article 15, UCMJ for assaulting another Soldier.  Her punishment consisted of a reduction to pay grade E-1, a forfeiture of $80.00 pay for one month, and extra duty and restriction for 14 days (suspended for 60 days).  She appealed the punishment on 28 July 1975 and the appeal was denied on 11 August 1975.



12.  On 21 October 1975, the applicant accepted NJP under Article 15, UCMJ for failure to go to her appointed place of duty.  This was in violation of Article 86, UCMJ.  Her punishment consisted of a forfeiture of $153.00 pay for 2 months and restriction for 45 days.  She did not appeal the punishment.

13.  She was barred to reenlistment on 21 October 1975 due to her record of NJPs and her continued negative behavior marked by apathy and disrespect toward the military.  

14.  The applicant underwent a separation physical examination on 5 November 1975.  Her Report of Medical Examination shows her first and last name as M____ O____W_____ and her rank as private E-1.

15.  On 8 January 1976, the applicant was directed to appear before a board of officers to determine whether or not she should be eliminated from the Army under Army Regulation 635-200, chapter 13, for unsuitability.  

16.  On 22 January 1976, the applicant was convicted by a summary court-martial, contrary to her plea, of failure to go to her place of duty (Violation of Article 86, UCMJ).  She was sentenced to a forfeiture of $12.00 and restriction to the 226th Supply and Service Company, place of duty, mess hall, and post chapel for 7 days.  The summary court-martial order shows her rank and pay grade as private E-1 and her first and last name as M____ O____W_____.

17.  The administrative board convened on 5 February 1976.  The applicant appeared with counsel and testified in her behalf.  The applicant testified that her parents lived in New Jersey and that her father was a U.S. citizen.  She did not make any statements regarding a spouse.  MAJ U______ testified that the applicant had accused him of being prejudiced and there was no mention of sexual harassment.  There were other witnesses that described incidents in which they had problems with the applicant’s duty performance.  

18.  The board of officers found the applicant to be undesirable for further retention because of her apathetic, argumentative, and nonconformative personality traits.  The board recommended that the applicant be discharged with a general discharge.

19.  Headquarters, U.S. Army Training Center and Fort Dix, New Jersey Special Orders Number 61, dated 1 March 1976, discharged the applicant from active duty on 1 March 1976 in the rank of private E-1.  These orders show her first and last name as M____ O____W_____.  

20.  All of the documents in the applicant’s personnel records show her name as M____ O____W_____.

21.  Item 1 on the applicant’s DD Form 214 (Copy 2) shows her first and last name as M____ O____W_____.  Her DD Form 214 (Copy 2) shows she requested a copy of her DD Form 214 in item 27; however, her initials are not shown on this copy.  She signed her DD Form 214 (Copy 2) in item 29; however, her signature is so faint as to be illegible.

22.  Item 6a and item 6b on her DD Form 214 (Copy 2) shows her rank and pay grade as private E-1.  Her date of rank is shown as 24 February 1975.

23.  Item 9d on her DD Form 214 (Copy 2) shows the effective date of her discharge as 1 March 1976.

24.  Item 38 (Record of Assignments) on the applicant's DA Form 2-1 shows she was discharged on 1 March 1976.

25.  The applicant provided an unclear copy of her DD Form 214.  This copy of her DD Form 214 shows her first and last name as M____ O____W_____ in item 1.  Her initials are shown as “M.O.W.” in item 27 and her signature appears to be M____ O____W_____ in item 29.  Her rank and pay grade are shown as private E-1 in item 6a and item 6b.  This copy of her DD Form 214 erroneously shows the effective date of her discharge as 1 March 1978.

26.  The applicant’s second marriage certificate shows she married J_____ A_____ on 18 November 1996.

27.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  

28.  Section 1552(f), Title 10, United States Code states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

29.  Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states a commander will personally exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and determining the amount and nature of any punishment if punishment is appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, this Board is reluctant to recommend that those records be changed.

2.  The applicant’s enlistment contract shows she entered active duty on 24 February 1975 and served on active duty using the name M____ O____W_____.  Although her first marriage certificate shows she married E____ P______ B_____ Jr. on 20 August 1974, prior to her enlistment, her military records show she continued to use the name M____ O____W_____ until she was discharged on 1 March 1976.  While the Board understands the applicant's desire to have the records changed, it finds no basis for compromising the integrity of the Army's records.  This Board action will be filed in her military records so an additional record of her name will be on hand.  However, there is no basis for amending the remarks section (item 27) or the signature block (item 29) on the applicant’s DD Form 214.

3.  The applicant was advanced to private E-2 on an unknown date.  She was reduced to private E-1 on 28 July 1975 as a result of NJP under Article 15, UCMJ.  Therefore, her DD Form 214 accurately reflects her rank and pay grade as private E-1.  It is noted that her date of rank is incorrect, but she does not specifically request correction of item 7 (Date of Rank).

4.  Orders and the applicant's Personnel Qualification Record show she was discharged from active duty on 1 March 1976.  Although her unclear copy of the DD Form 214 indicates the effective date of discharge as 1 March 1978, her DD Form 214 (Copy 2) was prepared to properly reflect the effective date of her discharge as 1 March 1976.  Therefore, there is no basis for amending item 9d on her DD Form 214 to show she was discharged from active duty on 1 March 1978.  A copy of her DD Form 214 (Copy 2) will be provided to her.  

5.  The non-judicial punishment proceedings and the court-martial proceedings were conducted in accordance with applicable law and regulations and the punishments imposed were within legal limits.  The applicant contends MAJ U___ subjected her to constant sexual and emotional harassment.  She did not bring those contentions up at her board hearing.  In the absence of extraordinary circumstances the Board is reluctant to substitute its judgment for that of the commander who was on the scene on the question of guilt, at this late date, and on the basis of incomplete evidence.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 March 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 February 1979.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

x_____ x______  x______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations 
prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




x_________
          CHAIRPERSON


INDEX

CASE ID
AR20060012705
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070417
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
100.0000
2.
126.0000
3.

4.

5.

6.