RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2008
	DOCKET NUMBER:  AR20070015003 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Ms. Sherri V. Ward

Member

Mr. Jeffrey C. Redmann

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 that Item 5 (Date of Birth) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.  He also requests that his under other than honorable conditions discharge be upgraded to a general or an honorable discharge. 

2.  The applicant states that his date of birth is 630831 not 630811.  His date of birth was typed wrong on his DD Form 214.  Also, he was told that his discharge would be upgraded to a general discharge 6 months after his separation from the military.

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

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 military service record shows that he entered active duty on  
2 May 1984.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 88M (Motor Transport Operator).

3.  Item 5 of the applicant's DD Form 214 shows the applicant's date of birth as 630811.

4.  All of the applicant's pertinent records, to include his enlistment contract and his DD Form 1584 (National Agency Check Request), show his date of birth as 630831.

5.  Between 8 January 1986 and 27 August 1986, the applicant received counseling from his chain of command for reporting late for company formation, not being at his appointed place of duty, and being drunk on duty.
6.  On 15 January 1986, the applicant received a Letter of Reprimand from his commanding general for driving a motor vehicle with a blood alcohol level of  
.10 percent or more.

7.  On 5 September 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being incapacitated for proper performance of his duties on 27 August 1986, as a result of wrongful previous overindulgence of intoxicating liquor or drugs.

8.  His military record shows that he was enrolled in an Operation Awareness Program; however, he did not make any progress while enrolled in this program nor did he benefit from it.

9.  On 23 September 1986, the applicant's commander recommended that he be barred from reenlistment.  On 3 October 1986, the Bar to Reenlistment was approved.

10.  On 14 May 1987, charges were preferred against the applicant for being absent without leave (AWOL) during the period 23 December 1986 to  
8 May 1987.

11.  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.  The applicant voluntarily requested discharge for the good of the service under the provision of Army Regulation 635-200 (Personnel Separation), chapter 10.

12.  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 of 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Discharge Certificate.  The applicant was advised that he may submit any statements he desires in his own behalf, which will accompany his request for discharge.  The applicant did not submit a statement in his own behalf.
13.  On 12 August 1987, the applicant's commander forwarded his recommendation for separation to the approving authority.  In the commander's recommendation it was stated that the applicant’s behavior indicated that retention was neither practical nor desirable and he has no potential for rehabilitation.

14.  On 21 August 1987, the approving authority approved the applicant's request and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.  Upon discharge the applicant was reduced to the lowest enlisted grade of private/pay grade E-1.

15.  On 23 September 1987, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 3 years and 7 days of net active service this period and that he accrued 136 days of time lost.

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

17.  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.  

18.  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.

19.  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.

20.  Army Regulation 635-5 (Separation Documents), then in effect, establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it states that you may use DD Form 4/4 (Enlistment/Reenlistment Document-Armed Forces of the United States) as a source document to enter date of birth in item 5 (Date of Birth) of the DD Form 214.  The date of birth is entered as year, month, and day.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that Item 5 of his DD Form 214 should be corrected to show his date of birth is 630831.  Also, he contends that his discharge should be upgraded to a general or an honorable discharge.

2.  All pertinent documents contained in the applicant's military service records show his date of birth as 630831.  Since the entry 630811 is obviously an administrative error, the applicant is entitled to correction of his records to show in Item 5 of his DD Form 214 that his date of birth is 630831.

3.  The evidence shows the applicant was AWOL from 23 December 1986 to  
8 May 1987.  As such, an under other than honorable conditions discharge was equitable and proper.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The extensive length of his AWOL renders his service unsatisfactory. Therefore, he is not entitled to either a general or an honorable discharge.

5.  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 has failed to submit evidence that would satisfy that requirement.

6.  The applicant states that he was led to believe his discharge would be upgraded after six months is noted.  However, the Army does not have or ever had a policy for an automatic upgrade.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__MKP__  __SVW__  __JCR __  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing in Item 5 of the applicant's DD Form 214 that his date of birth is 630831.

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 an upgrade of his under other than honorable conditions discharge.




____M. K. Patterson_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080221
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
Grant (Partial)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.