RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 September 2007
	DOCKET NUMBER:  AR20070005882 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Thomas A. Pagan

Chairperson

Mr. Eric N. Andersen

Member

Mr. Paul M. Smith

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, in effect, correction of his records to show his correct name.  He further requests that his undesirable discharge be changed to a general under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, that his records show his name as William John Manuel Q_______ and that his real name is Juan Manuel Q_______.  He further states that he was told that he would get an early out discharge instead of a discharge under other than honorable conditions. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 6 April 1972; a Texas Department of Health Bureau of Vital Statistics Certificate of Birth; and a Social Security Administration Card.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 31 July 1970 under the name William John Manuel Q_______.  His DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows the applicant’s name as William John Manuel Q_______ but he signed the documents as William Juan Manuel Q_______.  His DD Form 398 (Statement of Personal History) shows that the applicant wrote and signed his name as William Juan Manuel Q_______.

3.  The majority of documents in the applicant’s service records show his name as William John Manuel Q_______ or William J M Q_______.  His signature on the majority of documents either shows he signed his name as William John Manuel Q_______ or William J M Q_______.   

4.  On 23 April 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty and being absent without leave (AWOL) for the period 
13 April 1971 through 22 April 1971.

5.  Evidence of record shows that the applicant was AWOL for the periods 3 May 1971 through 9 June 1971 and 25 June 1971 through 11 July 1971.

6.  On 10 August 1971, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 6 August 1971 through 9 August 1971.

7.  On 19 October 1971, the applicant was convicted, pursuant to his plea, by a summary court-martial of being AWOL for the period 7 September 1971 through 
4 October 1971.  His sentence consisted of a forfeiture of $95.00 pay per month for one month and hard labor without confinement for 45 days.

8.  Evidence of record shows that the applicant was AWOL on 5 January 1972.

9.  On 7 March 1972, the applicant was convicted, pursuant to his plea, by a summary court-martial for being AWOL for the period 1 February 1972 through 
14 February 1972.  His sentence consisted of a forfeiture of $192.00 pay per month for one month and hard labor without confinement for 45 days.

10.  A DD Form 458 (Charge Sheet), dated 9 March 1972, shows charges were preferred against the applicant for three specifications of failure to be at his prescribed place of duty.

11.  Evidence of record shows that the applicant was AWOL for the period 
13 March 1972 through 21 March 1972.

12.  On 10 March 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge and waived the right to provide statements on his own behalf.  

13.  On 23 March 1972, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Undesirable Discharge Certificate.  On 6 April 1972, the applicant was discharged with a characterization of service as under other than honorable conditions.  The applicant had completed 1 year, 5 months, and 11 days of creditable active service with a total of 105 days of lost time due to AWOL.

14.  The applicant provided a copy of his certificate of birth, which shows his name as Juan Manuel Q_______.  He provided his Social Security Administration Card that shows his name is Juan Manuel Q_______.

15.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states 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.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

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.  Although it appears the applicant’s name might have been Juan Manuel Q_______ at that time or that he signed some documents as William Juan Manuel Q_______, the majority of the documents in his records show he served in the Army and was discharged under the name William John Manuel Q_______.  While it is understood the applicant desires to have the records changed, there is no basis for compromising the integrity of the Army’s records.  This Record of Proceedings will be filed in his military records so a record of his name will be on hand.

3.  The applicant requests that his undesirable discharge be upgraded to a general under honorable conditions or an honorable discharge.  However, his records show that he was convicted by two summary courts-martial, received two Article 15s, and had eight instances of AWOL during his military service.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of a general or an honorable discharge.

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__TAP  __  __ENA  _  ___PMS_  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




    ___Thomas A. Pagan__
          CHAIRPERSON




INDEX

CASE ID
AR20070006021
SUFFIX

RECON

DATE BOARDED
13 SEPTEMBER 2007
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.7900.0000
2.
100.0100.0000
3.

4.

5.

6.