IN THE CASE OF:	

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090003045 


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 that his discharge under other than honorable conditions be upgraded to an honorable or a general discharge and that the last name that is currently reflected on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states, in effect, that he was a young man under tremendous stress at the time that he went absent without leave (AWOL).  He states that his brother was shot and killed and that he was suffering from extreme mental anguish and unsure of himself.  He states that the loss of his brother took its toll on him as he suffered extreme bouts of major depression and severe anxiety.  He states that his brother was shot over a petty disagreement and that even today he is still suffering from the loss of his brother.

3.  The applicant goes on to state that his father’s last name was used by the recruiter at the time of his enlistment and that his mother’s last name is different. He states that although he told the recruiter that he and his mother shared the same last name, the recruiter still placed his father’s last name on his records.

4.  The applicant provides two copies of his Social Security Card, a copy of the front and back of a Birth Card Certification from the Kentucky Department for Health Services issued on 10 October 1986, and a copy of his DD Form 214 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.  On 6 November 1978, the applicant enlisted in the United States Army Reserve (USAR) under the Delayed Entry Program at age 19 for 3 years in the pay grade of E-1.  He enlisted in the Regular Army (RA) for 3 years on 14 November 1978.  At the time of his enlistments, he signed his last name as is reflected on his DD Form 214.  The applicant went on to successfully complete his training as a telecommunications center operator.

3.  The applicant’s records show that he was on ordinary leave when he went AWOL on 11 May 1981 and he remained absent in desertion until he surrendered to military authorities on 8 July 1981.

4.  On 9 July 1981, the applicant was notified that charges were pending against him for being AWOL from 11 May 1981 until 8 July 1981.  He acknowledged receipt of the notification on 10 July 1981 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  At the time that he submitted his request for discharge he acknowledged that he understood that he may be discharged under other than honorable conditions and furnished an Other Than Honorable Conditions Discharge Certificate.

5.  Along with his request for discharge he submitted a statement in his own behalf in which he stated that he was 21 years old and had a twelfth grade education.  He stated that he joined the Army to learn a skill and to become self reliant.  He stated that his reason for requesting to be discharged under the provisions of Army Regulation 635-200, chapter 10, was due to the death of his brother which caused a lot of anxiety and hostility that he did not believe he could control in a military environment.

6.  The appropriate authority approved the request for discharge on 28 December 1981 and he directed the issuance of a discharge under other than honorable conditions.

7.  Accordingly, on 20 January 1982 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 3 years and 10 days of net active service.

8.  The available records show that the applicant’s last name is the same on every document contained in his official record as is reflected on his DD Form 214.

9.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

10.  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.

11.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.

12.  Paragraph 3-7 also 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.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable or a general discharge and that his last name should be changed on his DD Form 214.

2.  His contentions have been noted.  However, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  His contentions regarding his age and loss of his brother have been noted.  However, his records show that he was on leave and that he failed to return from leave.  He was 21 years old when he opted to go AWOL on 11 May 1981 and he remained absent in desertion until he surrendered to military authorities on 8 July 1981.  Once he returned to military control he chose to submit a request for discharge for the good of the service in lieu of trial by court-martial.  The type of discharge that he received was in accordance with the applicable regulation.

4.  The applicant enlisted in the USAR and RA using the last name that is reflected on his DD Form 214 and that same last name is reflected on every document contained in his official file.

5.  The information in an official record must reflect the conditions and circumstances that existed at the time the records were created.  In this regard, name changes that occur after completion of military service are generally not a basis for changing the military record.

6.  In the absence of compelling information to the contrary, there is no basis for changing the records in the applicant’s case.  Nevertheless, the copies of the Social Security Card and the Birth Card Certification that he submitted in support of his application will be filed in his official record for future reference.

7.  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 this requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20090003045



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003045



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1