IN THE CASE OF:	

		BOARD DATE:	  16 April 2009

		DOCKET NUMBER:  AR20090000605 


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, an upgrade of his undesirable discharge (UD). 

2.  The applicant states, in effect, he served honorably.  He claims an officer called him a name and he hit him unintentionally, not realizing what had happened.  He also claims his birth date is incorrect.  

3.  The applicant provides an illegible DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and an illegible birth certificate in support of his application. 

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 record shows he enlisted in the Regular Army and entered active duty on 21 July 1971.  The enlistment contract (DD Form 4) completed on the applicant during his enlistment processing lists his date of birth as 
5 September 1953, in Item 21 (Date of Birth), and the applicant and a recruiting official authenticated this document with their signatures. 

3.  The applicant's DA Form 20 (Enlisted Qualification Record), which was prepared on him upon his arrival at Fort Leonard Wood, Missouri, where he was assigned to attend basic training, on 21 July 1971, lists his date of birth as 
5 September 1953 in Item 6 (Date of Birth).  His record documents no acts of valor, significant achievement or service warranting special recognition.  

4.  On 6 October 1971, while still in basic training at Fort Leonard Wood, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 1 through 5 October 1971.  His punishment was 7 days of restriction and extra duty.  

5.  On 11 October 1971, while he was still in basic training, the applicant departed absent without leave (AWOL) from his unit at Fort Leonard Wood.  He remained away for 184 days until returning to military control at Fort Sill, Oklahoma, on 12 April 1972.  

6.  On 20 April 1972, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ 
by being AWOL from on or about 11 October 1971 through on or about 
12 April 1972.

7.  On 25 April 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances that could lead to a bad conduct or dishonorable discharge, of the effects of a discharge request for the good of the service, and of the rights available to him.  Subsequent to this counseling, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his discharge request, the applicant acknowledged that he could receive an UD and that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both State and Federal law.  He further indicated that he understood he could encounter substantial prejudice in civilian life by reason of an UD.  The applicant elected to submit a statement in his own behalf.  

8.  In the statement he provided with his discharge request, the applicant indicated that the reasons he wanted out of the Army were that his mother almost lost her mind when she found out he was in the Army and wanted him home to take care of his little brother.  He further indicated that he was also unable to adjust to Army standards and the military way of life. 

9.  On 8 May 1972, the separation authority approved the applicant's request for discharge and directed he receive an UD, and the applicant was discharged accordingly on that same date.  The DD Form 214 issued to the applicant lists his date of birth as 5 September 1953, in Item 9 (Date of Birth).  It also shows that he completed 3 months and 17 days of creditable active military service and that he accrued 185 days of time lost due to AWOL.  

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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.

12.  The same regulation states that an under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  At the time of the applicant's discharge the regulation provided for the issuance of an UD for members whose service was characterized as UOTHC.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the commission of an offense, AWOL for more than 30 days) punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, 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.

2.  The record further shows that the applicant voluntarily requested discharge in order to avoid a court-martial that could have resulted in his receiving a punitive discharge, only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving an UD.  His record documents no acts of valor, significant achievement, or service warranting special recognition, and the UD he received was normal and appropriate under the regulatory guidance in effect at the time.  It is clear that his short and undistinguished record of service did not support the issue of a GD or HD by the separation authority at the time of his discharge, and it is equally clear it does not support an upgrade now. 

3.  The applicant’s contention that the date of birth listed on his DD Forms 214 is incorrect has also been carefully considered.  However, the DD Form 4 prepared on him during his enlistment processing, his DA Form 20, and his DD Form 214 all list his date of birth as 5 September 1953, and the birth certificate he provided is illegible.  As a result, there is an insufficient evidentiary basis to conclude the date of birth listed in his military records and on his separation document is in error.  

4.  Further, even if the date of birth recorded in his military records did not match the one listed on his birth certificate, the Army has an interest in maintaining the accuracy of its records and the data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  While the applicant’s desire to have his military records changed to reflect the date of birth contained on his birth is understood, there is no indication that he questioned the date of birth at the time he entered the United States Army on 21 July 1971, at anytime during his active duty service, or at the time of his discharge on 8 May 1972.  As a result, given it appears he entered, performed and was separated from the Army under the date of birth listed on his DD Form 214, it would not be appropriate to grant this portion of the requested relief at this late date.  

5.  A copy of this decisional document, along with his application and associated documents, to include the birth certificate he submitted, will be filed in the applicant’s Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion regarding his date of birth as it relates to his military service.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  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.




      _______ _ 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)                                         AR20090000605



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ABCMR Record of Proceedings (cont)                                         AR20090000605



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