IN THE CASE OF:	

		BOARD DATE:	10 September 2009    

		DOCKET NUMBER:  AR20090007495 


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, that his undesirable discharge be upgraded. 

2.  The applicant states, in effect, that he signed his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 
19 October 1973 with the wrong middle name, this makes his discharge from the military invalid.  The applicant states that he signed DD Form 214 with the middle name "Joker."  The applicant further states at the time it was supposed to be a joke, because he and about 15 other Soldiers in the same situation as he signed their middle name the same way.  

3.  The applicant provides no additional documentation in support of this case.

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 12 October 1967.  His legal middle name is Joseph.  All documents in his military records show he signed his signature using the initial "J." or "Joseph" for the middle name of his signature.

3.  On 16 July 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for sleeping on guard duty.

4.  Evidence of record shows the applicant was absent without leave (AWOL) for the period 20 September 1968 through 9 November 1968.

5.  On 8 December 1970, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 29 December 1969 through 26 January 1970.

6.  A DD Form 458 (Charge Sheet), dated 1 October 1973, shows court-martial charges were preferred against the applicant for being AWOL for the periods 
4 February 1970 through 13 March 1970, 23 March 1970 through 19 November 1970, 22 November 1970 through 9 December 1970, and 31 January 1973 through 28 September 1973.

7.  On 10 October 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The applicant acknowledged in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to provide statements in his own behalf.

8.  The applicant submitted a statement on his own behalf that stated, in effect, that he had had many personal problems at home that needed to be addressed and that his main focus was to ensure his daughter was taken care of.  



9.  On 16 October 1973, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  He directed that the applicant be issued an Undesirable Discharge and that the applicant be reduced to the lowest grade.  

10.  On 19 October 1973, the applicant was discharged and his service was characterization as under other than honorable conditions.  The applicant had completed 4 years, 4 months, and 7 days of creditable active service with a total of 320 days of lost time due to being AWOL.

11.  Item 1 (Last Name, First Name, Middle Name) of applicant's DD Form 
214 for the period ending 19 October 1973 shows his middle name as "Joseph" and item 32 (Signature of Person Being Transferred or Discharged) shows he signed his middle name as "Joker."

12.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. At the time, an undesirable discharge was normally considered appropriate.

13.  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.

14.  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.

15.  Army Regulation 635-5 (Separation Documents), in effect, at that time prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized preparation of the DD Form 214.  In pertinent part, it stated the DD Form 214 was a synopsis of the Soldier’s most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  For item 32 it stated the individual being separated will sign the document in the presence of the officer signing it in item 34.  The original would be signed in ink in such a manner that the signature on carbon copies was legible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded.  However, his records show that he received two Article 15s and had six instances of AWOL during his military service.  He had completed 2 years, 
3 months, and 9 days of creditable active service with a total of 92 days of lost time due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of a general or an honorable discharge.

2.  The applicant further contends that his discharge is not valid because he signed his DD Form 214 with the incorrect middle name.  However, the applicant is confusing the administrative separation process with the DD Form 214.  The applicant's discharge was ordered by the separation authority on 16 October 1973 under the provisions of chapter 10, Army Regulation 635-200.  His period of military service was captured and documented on the DD Form 214.  

3.  The evidence of record further shows that the applicant was issued a DD Form 214.  He authenticated this form by placing his signature in the appropriate block.  By his own admission, the applicant indicated that he intentionally signed the incorrect middle name of "Joker" instead of "Joseph" on his DD Form 214.  However, that does not invalidate the form and most importantly does not change the authority for his discharge.  Therefore, there is no basis for granting the applicant's requested relief.

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.





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)                                         AR20090007495





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007495



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1