IN THE CASE OF:	  

	BOARD DATE:	  5 June 2008

	DOCKET NUMBER:  AR20080004971 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of Item 13a (Character of Service) of his 19 January 1968 separation document (DD Form 214).  

2.  The applicant states, in effect, that his character of service on his discharge orders state "under honorable conditions", however his DD Form 214 shows "under conditions other than honorable".  He states he was informed by the Department of Veterans Affair (VA) that the non-service connected disability pension he was granted would be discontinued if the character of his service on his DD Form 214 is not corrected to show he received a general, under honorable conditions discharge (GD) instead of an under other than honorable conditions (UOTHC) discharge.  

3.  The applicant provides the following documents in support of his application:  DD Form 214; Discharge Certificate; 4th Battalion 57th Artillery Special Orders Number 10; and Headquarters, United States Army Personnel Center Special Orders Number 18, dated 18 January 1968.


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 he enlisted into the Regular Army and entered active duty on 10 November 1966.  He was trained in and awarded military occupational specialty (MOS) 36K (Wireman), and the highest rank he attained while serving on active duty was private/E-2 (PV2).  His Enlisted Qualification Record shows that during his active duty tenure, he earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

3.  The applicant's disciplinary history shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions, and was found guilty of violating Article 91 of the UCMJ by a Summary Court-Martial on 6 September 1967.  

4.  On 15 November 1967, after being notified of his commander’s intent to process him for separation under the provisions of Army Regulation 635-212, by reason of unfitness, the applicant consulted legal counsel.  He was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  Subsequent to receiving this counsel, he elected to waive the following rights:  consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement in his own behalf.


5.  On 18 December 1967, the applicant’s unit commander recommended his discharge under the provisions of Army Regulation 635-212, for unfitness.  The unit commander cited the applicant's lack of desire to conform to the military life and his disciplinary record as the basis for taking the action.  The unit commander stated that the applicant had shown that he would not abide by the rules and regulation of the Army, and therefore, he recommended the applicant be eliminated from military service by reason of unfitness.  

6.  On 8 January 1968, the approving authority denied the commander's recommendation for the applicant's discharge under the provisions of 
AR 635-212, by reason of unfitness.  Instead, the approving authority approved the applicant's discharge under the provisions of AR 635-212, by reason of unsuitability (apathy, defective attitude and inability to expend effort constructively), and directed he be furnished a DD Form 257A 
(General Discharge Certificate).  

7.  Headquarters, United States Army Personnel Center, Fort Dix, Special Orders Number 18, dated 18 January 1968, directed the applicant's discharge by reason of unsuitability and that he be issued a DD Form 257A (GD Certificate), and on 19 January 1968, the applicant was discharged accordingly.  

8.  The DD Form 214 issued to the applicant on 19 January 1968, shows he was discharged under the provisions of AR 635-212, by reason of unsuitability (apathy, defective attitude and inability to expend effort constructively), after completing a total of 1 year, 1 month, and 16 days of creditable active military service.  Item 13a (Character of Service) contains the erroneous entry "Under Conditions Other than Honorable" and Item 13b (Type of Certificate Issued) contains the entry "DD Form 257A", which shows he was issued a GD Certificate. 

9.  The applicant provides his GD Certificate (DD Form 257A), which indicates he was discharged under honorable conditions on 18 January 1968.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time of the applicant's discharge stated, in pertinent part, that Item 13a would contain a characterization of service and Item 13b would contain the number of the certificate issued, or the entry "None" in cases when no formal certificate was authorized.  

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability (apathy, defective attitude and inability to expend effort constructively).  Members separating under this provision of the regulation could receive either and HD or GD.  An UOTHC discharge was not authorized for members separated under unsuitability provisions.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show his character of service as a GD was carefully considered and found to have merit.  

2.  The evidence of record confirms that the approving authority approved the applicant's discharge under the provisions of AR 635-212, for unsuitability, and directed the applicant be issued a DD Form 257A (GD), as evidenced by the approving authority's memorandum, dated 8 January 1968, and the separation orders that are on file in the applicant's record.  As a result, it is clear the UOTHC entry in Item 13a of the applicant's DD Form 214 is an administrative error.  Therefore it would be appropriate and serve the interest of justice and equity to correct it at this time. 

3.  The DD Form 257A issued to the applicant also contains an administrative error.  The date entered shows the applicant was discharged on 18 instead of
19 January 1968.  As a result, it would also be appropriate to issue him a new DD Form 257A with the correct discharge date.  

BOARD VOTE:

___x_____  ___x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

      The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his 19 January 1968 DD Form 214 by deleting the current entry in Item 13a and replacing it with the entry "Under Honorable Conditions"; by issuing him a new DD Form 257A Discharge Certificate, which reflects his correct discharge date of 19 January 1968. 
      



       _    ___x____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004971



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ABCMR Record of Proceedings (cont)                                         AR20080004971



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