RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
         


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070013475 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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:

	a.  an upgrade of her discharge; 

	b.  correction of her last name from "Th***e" to "Pe**y"; and

	c.  correction of her rank/grade from “private (PVT)/E-1” to “private first class (PFC)/E-3.”

2.  The applicant also requests numerous other administrative changes to other records, as follows:

      a.  Item 23 (Physician Summary and Elaboration) of her Standard Form 93 (Report of Medical History), dated 20 February 1980, to show she was married “3 times” instead of “zero” and she was pregnant “2 times” instead of           “1 time”; 

	b.  Item 30a (Relatives Name) of her DD Form 1966/3 (Record of Military Processing), to show she was married 3 times; 

	c.  Item 36d (Involvement with Police or Judicial Authorities) of her DD Form 1966/5 (Record of Military Processing) to show her initials in the “No” block instead of the “Yes” block;

	d.  Item 17 (Civilian Education and Military Schools) of Section II (Classification and Assignment Data) of her DA Form 2-1 (Personnel Qualification Record), to show an additional entry of “San Bernandino, 2 years”;

	e.  Item 7 (Date of Birth) of her DD Form 458 (Charge Sheet), dated 24 September 1981, to show “6 November 1945” instead of “6 November 1948”; and 

	f.  Item 2f (Education) of her DA Form 2496 (Disposition Form), dated 14 October 1981, to show “an Associate Degree and two years college at California State College, San Bernardino, California.”

3.  The applicant states that she wants an honorable discharge because she was pregnant and that her legal last name was "Pe**y," not "Th****e."  She also states that she was a PFC/E-3 when she was in Boston.
4.  The applicant provides the following additional documentary evidence in support of her application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 18 December 1981;

	b.  Headquarters, 7th Infantry Division and Fort Ord, Fort Ord, California, Orders 244-409, dated 14 December 1981;

	c.  DA Form 2496, dated 14 October 1981, Request for Discharge for the Good of the Service;

	d.  DA Form 458, dated 24 September 1981 (page 1 of 4 only);

	e.  DD Form 1966/3 and DD Form 1966/5, dated 12 March 1980;

	f.  Standard Form 93, dated 20 February 1980 (back page only);

	g.  Standard Form 88 (Report of Medical Examination), dated 20 February 1980; and

	h.  DA Form 2-1, page 2 (of 4 pages) only.

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's records show that she was born on 6 November 1948.  At some stage in her life, she decided to join the Army and tested for the Armed Services Vocational Aptitude Battery Test (ASVAB) on 13 February 1980 .  

3.  On 20 February 1980, she underwent a medical examination for enlistment in the Regular Army.  During this medical examination, she answered a series of questions on the Report of Medical History, SF 93, by checking the "Yes" or "No" column on that form.  Item 19 of this form asked the applicant if she had been a patient in any type of hospital and if so, to specify when, where, and why.  The SF 93 shows the applicant answered with a "Yes" entry and hand-wrote a remark stating that she had been a patient in a hospital on 19 January 1968 for child birth.  She placed her name and signature on this form, certifying that she reviewed the information that she supplied and that all the information supplied was true to the best of her knowledge.  Accordingly, the military doctor placed a remark in Item 25 (Physician Summary) indicating that the applicant had been pregnant one time.  

4.  The DD Form 1966 series (Application For Enlistment-Armed Forces of the United States) is used to determine an applicant's eligibility for enlistment in the Armed Forces.  It is completed by the recruiter with input from the applicant on the date the applicant enlists in the Delayed Entry Program (DEP) and is reviewed and recertified on the date the applicant ships (departs to basic combat training).

5.  The applicant's records further show that she enlisted in the U.S. Army Reserve (USAR) under her last name "Th***e" on 21 February 1980, under the DEP.  She placed her signature in Item 16a (Signature of Enlistee/Reenlistee and Date) of the DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United States), dated 21 February 1980, using the name "Th***e."

6.  She was discharged from the USAR on 11 March 1980 and enlisted in the Regular Army for a period of 3 years under her last name "Th***e" on 12 March 1980.  She placed her signature in Item 16b (Signature of Enlistee Enlisted from the DEP into the Regular Component and Date) using the name "McK****n."  The recruiter made an entry in Item 44a (Recertification) of the DD Form 1966/9 that shows "Married 26 FEB 80- Name Changed to "McK****n."

7.  Item 30 (Relatives) of her DD Form 1966/3 shows the name, dependency status, date of birth, place of birth, address, and citizenship of the applicant's mother, father, and spouse at the time of her enlistment.  Item 36b (Involvement With Police or Judicial Authorities) shows the applicant placed her initials in the "No" column, then crossed it out and placed her initials in the "Yes" column, indicating that she had involvement with the police and listed the types of offense she had in Item 36f (Explanation).  She further placed her signature in Item 37 (Remarks), indicating that she had "reviewed the form and stated that there were no other law violations or drug abuse other than listed in Item 36f."  Furthermore, she authenticated the DD Form 1966 by placing her signature in Item 48e (Signature of Applicant).

8.  On 12 March 1980, Armed Forces Examining and Entrance Station (AFEES), Boston, Massachusetts, published Enlistment/Travel Order Number 54-24, instructing the applicant, under the name "McK****n" to report to Fort Dix, New Jersey, for basic combat training.

9.  On 18 March 1980, Headquarters, U.S. Army Reception Station, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, published Orders 54-3, assigning the applicant, under her last name "McK****n" to Company D, 1st Battalion, 3rd Training Brigade, Fort Dix, New Jersey.  The Orders listed the applicant's rank/grade as private first class (PFC)/E-3.

10.  On 22 March 1980, the applicant departed her basic training unit in an absent without leave (AWOL) status.  She was subsequently dropped from the Army rolls (DFR) on 21 April 1980.  She was apprehended by civil authorities and returned to military control at Presidio of San Francisco, San Francisco, California, and was transferred to the U.S. Army Processing Control Facility (USAPCF), Fort Ord, California, on 21 July 1981. 

11.  On 10 August 1981, the applicant departed Fort Ord, California, in an AWOL status, and was subsequently dropped from the Army rolls on the same day.  She surrendered to military authorities at Fort Ord, California, on 14 August 1981.

12.  On 24 September 1981, Court-Martial charges were preferred against the applicant for two specifications of being AWOL during the periods on or about 
22 March 1980 through on or about 21 July 1981 and on or about 10 August 1981 through on or about 14 August 1981.

13.  On 1 October 1981, she consulted with legal counsel and was advised of the nature of the offenses for which she could be tried, the maximum permissible punishment that could be imposed, of the possible consequences of a discharge under other than honorable conditions, and of the procedures and rights available to her.  Subsequent to receiving this legal counseling, the applicant voluntarily requested discharge for the good of the service under chapter 10 of Army Regulation 635-200 (Personnel Separations).  



14.  In her request for discharge, the applicant indicated that she understood that by requesting discharge, she was admitting guilt to the charges against her, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  She further acknowledged she understood that if the discharge request was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

15.  On 14 October 1981, by Disposition Form, the Acting Staff Judge Advocate, Fort Ord, California, recommended approval of the applicant's discharge for the good of the service with an Under Other Than Honorable Conditions Discharge Certificate.  The Disposition Form listed the applicant's year of birth as 1945 instead of 1948.

16.  On 14 October 1981, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed she receive an Under Other Than Honorable Conditions Discharge Certificate and that she be reduced to private/
E-1.  On 18 December 1981, the applicant was discharged accordingly.  

17.  The DD Form 214 she was issued at the time of her discharge confirms she was identified as "McK****n" and she was discharged for the good of the service with an "Under Other Than Honorable Conditions" character of service.  This form further confirms she had completed a total of 5 months and 5 days of creditable active military service and she had 486 days of lost time. 

18.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

19.  Army Regulation 635-200 (Personnel Separations) 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.


20.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

21.  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.

22.  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.  In establishes standardized policy for the preparation of the DD Form 214.  In pertinent part 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.  It also states, in pertinent part, that the active duty grade or rank and pay grade at the time of separation, taken from the Soldier’s records will be entered in Item 4a and 4b of the DD Form 214.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows she was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects her overall record of service.

2.  There is no evidence in the available records nor did the applicant provide documentation to substantiate an upgrade of her discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 

3.  Although the applicant's last name was "Th****e" at the time she enlisted in the USAR on 21 February 1980, she was married on 26 February 1980, and requested her last name be changed to “McK****n" prior to entering active duty.  She signed her enlistment contract on 12 March 1980 using her last name "McK****n."  Furthermore, she served under the same last name “McK****n” throughout her entire military service.  There is no evidence or history in her records that she used the last name "Pe**y" during her military service. Therefore, the Army records are consistent with the applicant's name at that time. 

4.  The Army has an interest in maintaining the integrity of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the records in this case.  

5.  Evidence of record further shows that upon approval of her separation under the provisions of chapter 10 of Army Regulation 635-200, she was reduced to lowest enlisted grade.  Therefore, her rank and grade are correctly shown on her DD Form 214.

7.  With respect to the applicant's other administrative changes:

	a.  The physician's summary and elaboration on her Report of Medical History depends, in part, on the information submitted by the applicant who listed past and current medical history.  Physicians normally comment on the answers. Additional medical history the physician deems important may be developed during the interview; such findings may be recorded in Item 25 of this report.  When completing this form, the applicant indicated that her child was born on 19 January 1968 and she listed no spouse.  Therefore, the military doctor correctly listed her marital status and pregnancy on the SF 93.

	b.  There is no requirement to list the names of previous spouses in Item 30a of the DD Form 1966/3.  Furthermore, completion of this portion of the enlistment contract depended, in part, on what the applicant stated during the interview that took place between her and her recruiter when completing this form.  The applicant recertified this form upon enlisting in the Regular Army on 
12 March 1980 and placed her signature in Item 48e, indicating that all the information on that form was correct to the best of her knowledge.  Therefore, there is no basis to correct Item 30a of the DD Form 1966/3.

	c.  Item 36 of the applicant's DD Form 1966/5 is completed and initialed by the applicant.  It appears that the applicant initially placed her initials in the "No" block, then crossed it out and placed her initials in the "Yes" block.  She further listed the type and date of the offense committed and authenticated this form by placing her signature in Item 37 stating that she reviewed the form and that she agreed with the entries on it.  Therefore, there is no basis to correct Item 36 of the DD Form 1966/5.

	d.  Item 17 of the applicant's DA Form 2-1 reflects completion of civilian and military education.  The DA Form 2-1 is a management control tool that was used by commanders and Soldiers for miscellaneous personnel management decisions.  The civilian and military education was updated locally based on the input provided by the Soldier.  In the absence of authenticated and dated college transcripts/diplomas or evidence that she attempted to update this local form at the time, there is simply insufficient evidence to determine why this Item was not updated.

	e.  Item 7 of the applicant's DD Form 458 (Charge Sheet) listed the applicant's date of birth incorrectly, presumably due to an administrative oversight.  However, in the absence of the applicant's birth certificate and a complete DD Form 458 (Charge Sheet), there is insufficient evidence to correct this entry.  

	f.  Item 2f of the applicant's Disposition Form listed a two-year college Associate Degree as the applicant's education.  The Disposition Form is a local form that is used for inter-office formal and informal correspondence and communication.  Data entry on local forms is normally extracted from official records.  In the absence of an updated DA Form 2-1, college transcripts, or other source documents, there is insufficient evidence to determine why a higher level of education was not entered on this form.  








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__phm___  __jgh___  __ksj___  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.




							PHM
      ______________________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070013475



10


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508