IN THE CASE OF:	

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090004974 


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 general under honorable conditions discharge be upgraded to a fully honorable discharge.  He also requests that his first name be changed to the proper spelling of Stefan vice Stephen.  

2.  The applicant states that his final discharge should be changed since he asked his staff noncommissioned officer (NCO) to get him out of the Army as fast as possible.  He did not care about safety anymore after he completed several combat missions in Vietnam.  He just wanted to return home.  He feels that his Post Traumatic Stress Disorder (PTSD) played a major role in his behavior and he was not able to get any help at that time.  He states that he was rated at 100 percent service-connected disability for his physical conditions and PTSD.  Also, he states he was highly decorated for his honorable service until he was convinced to sign inaccurate discharge papers.

3.  The applicant provides a document (translated in German), dated 7 January 2008, from the Republic of Austria; a letter from the Department of Veterans Affairs (DVA); two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge); and a DD Form 215 (Correction to 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.  The applicant enlisted in the Regular Army on 28 November 1969 with parental consent.  His DD Form 373 (Consent, Declaration of Parent or Legal Guardian) and DD Form 4 (Enlistment Contract- Armed Forces of the United States) show the spelling of his first name as Stephen.  

3.  He completed a DD Form 398 (Statement of Personal History) on 3 December 1969 which shows the spelling of his first name as Stephen.

4.  His DA Form 20 (Enlisted Qualification Record) shows the spelling of his first name as Stephen.  

5.  The applicant was honorably discharged on 11 October 1970 for immediate reenlistment.  Item 1 (Last Name-First Name-Middle Name) on his DD Form 214 for the period ending 11 October 1970 shows the spelling of his first name as Stephen.

6.  He reenlisted on 12 October 1970 for a period of three years.  His reenlistment contract shows the spelling of his first name as Stephen.  

7.  Special Orders Number 154, dated 3 June 1971, promoted the applicant to specialist four, E-4 on 10 May 1971.  These orders show the spelling of his first name as Stephen.

8.  The applicant served in Vietnam from December 1970 to December 1971.

9.  On various occasions between June 1971 and August 1972, the applicant accepted four nonjudicial punishments (NJPs) under Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses (1) failure to obey a lawful order; (2) disorderly in camp; (3) disrespectful toward superior commissioned officer; (4) failure to obey a lawful general regulation; and (5) failure to go to his appointed place of duty.  His Record of Proceedings Under Article 15, UCMJ show the spelling of his first name as Stephen.  


10.  On 8 September 1972, the company commander notified the applicant of pending separation action under the provisions of Army Regulation 635-212 based on unsuitability - established pattern of apathy, defective attitudes, and an inability to expend effort constructively.  He was advised of his rights.  The applicant declined consultation with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf.  

11.  The separation authority's approval of the separation action under the provisions of Army Regulation 635-212 is not available.  However, his DD Form 214 for the period ending 18 October 1972 shows he was discharged on 18 October 1972 under the provisions of Army Regulation 635-212.  He was discharged with a separation code of 46A (Unsuitability, Apathy, Defective Attitude or Inability to Expend Effort Constructively) with a general under honorable conditions discharge.  He completed 2 years and 7 months creditable active service during the period under review and 3 years, 1 month, and 15 days total active military service.  

12.  Item 1 on his DD Form 214 for the period ending 18 October 1972 shows the spelling of his first name as Stephen.  

13.  On 7 November 1973, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge to fully honorable.  

14.  The applicant was issued a DD Form 215 on 31 August 1981 which added award of the Air Medal, the Bronze Star Medal, the National Defense Service Medal, the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal, the Sharpshooter Badge with Automatic Rifle Bar, and the Expert Badge with Rifle Bar to his DD Form 214 for the period ending 18 October 1972.

15.  The applicant also provided a letter, dated 5 April 2007, from the DVA which indicates he was in receipt of monthly compensation for service-connected disability at 100 percent rating.  This letter shows his first name is spelled Stephen.  

16.  The applicant provided a copy of a document issued by the Republic of Austria on 7 January 2008 which indicates the spelling his first name as Stefan.  

17.  The documents in the applicant's service personnel record show he consistently signed his first name as Stephen.

18.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for the discharge due to unsuitability of those individuals with apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

19.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s statements regarding the circumstances which led to his discharge are noted.  He contends that PTSD played a major role in his behavior and he was unable to get any help during that time.  However, there is no evidence of record which substantiates his claims.   

2.  The applicant’s service record shows he received four NJPs during the period under review.  Although he may now feel that his general under honorable conditions discharge should be upgraded, his service does not meet the standards of acceptable conduct and performance of duty to warrant a fully honorable discharge in accordance with Army Regulation 635-200.

3.  In the absence of evidence to the contrary, it is presumed that the applicant’s administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

4.  There is no evidence of record which indicates the actions taken in the applicant's case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his discharge from general under honorable conditions to fully honorable.

5.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, this Board is reluctant to recommend that those records be changed.

6.  The applicant’s document from the Republic of Austria (translated in German) shows the spelling of his first name as Stefan.  However, the applicant's service record shows he served in the military and was discharged using the spelling of his first name as Stephen.  While the applicant's desire to have the records changed is understandable, there is no basis for compromising the integrity of the Army's records.  This Board action will be filed in his military records so that a record of the proper spelling of his first name he is currently using will be on hand.  

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)                                         AR20090004974





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ABCMR Record of Proceedings (cont)                                         AR20090004974



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