IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090011575 


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 removal of the United States Department of Justice, Federal Bureau of Investigation (FBI) letter, dated 18 June 1975, from his Official Military Personnel File (OMPF).  He also requests, in effect, reconsideration of his earlier request that his discharge be upgraded.  

2.  The applicant states that the letter from the Director, FBI, which states that he was incarcerated at a New Hampshire county jail, refers to someone else.  It reflects a case of mistaken identity as the Social Security Number (SSN) indicated on the letter does not reflect his SSN, but rather another individual's SSN.  He adds that he has never been incarcerated at Coos County Jail, West Stewartstown, NH, as the letter indicates.  He also adds that an earlier decision by the Army Board for Correction of Military Records (ABCMR) in an unrelated matter referenced this letter in the Record of Proceedings.  This led him to seek help from his Member of Congress who successfully addressed the issue with the New Hampshire State Police Criminal Records Unit and he was able to obtain certification from that unit that he has no criminal history record in the State of New Hampshire.

3.  The applicant provides a copy of the FBI letter, dated 18 June 1965; a copy of a letter, dated 12 March 2008, from the State Police Criminal Records Unit, Merrimack, NH; a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 9 July 1974; and a copy of a letter, dated 17 March 2008, from his Member of Congress in support of his request.


CONSIDERATION OF EVIDENCE:

1.  In regard to the applicant’s request for reconsideration of his earlier request to upgrade his discharge, incorporated herein by reference are military records which were summarized in the previous consideration of his case by the ABCMR in Docket Number AR1999024374 on 22 July 1999.

2.  The letter, dated 12 March 2008, from the State Police Criminal Records Unit, Merrimack, NH is new evidence that will be considered by the Board.

3.  The applicant’s records show he enlisted in the Regular Army (RA) for a period of 3 years on 26 August 1968.  Item 5 (Last Name, First Name, Middle Name) of his DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows his first and middle name as D----s A----w and item 19 (SSAN) shows his SSN as "xxx-x0-5xx8."

4.  The applicant's records also show he completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 76Y (Supply Specialist).  He subsequently served in the Republic of Vietnam from on or about 23 June 1969 to on or about 30 March 1971.

5.  He was honorably released from active duty in the rank/grade of sergeant (SGT)/E-5 on 31 March 1971 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his remaining Reserve obligation.

6  The DD Form 214 he was issued shows he completed 2 years, 7 months, and 5 days of creditable active service and was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Army Good Conduct Medal, and the Bronze Star Medal.  This form also shows his first and middle name as D----s A----w and his SSN as "xxx-x0-5xx8."

7.  After a break in service, the applicant’s records show he enlisted in the RA for a period of 3 years on 17 July 1973.  He was subsequently assigned to Service Battery, 1st Battalion, 12th Field Artillery at Fort Sill, OK.

8.  On 9 February 1974, the applicant was involved in a fight at a local bar in Lawton, OK, and while looking in a different direction, he was hit in the eye by an unknown intoxicated individual.  He was subsequently admitted to the Reynolds Army Hospital, Fort Sill on 11 February 1974 where he underwent a medical examination and he was subsequently released to his unit.

9.  On 6 March 1974, the applicant departed his unit in an absent without leave (AWOL) status.

10.  On 12 March 1974, by letter addressed to the applicant’s parents, the applicant’s immediate commander notified the parents that the applicant had been AWOL and appealed to them to urge the applicant to return to his unit if his whereabouts were known.

11.  On 12 March 1974, the applicant's immediate commander conducted an inquiry into the applicant's whereabouts.  In his letter of inquiry, the commander stated that to his knowledge the applicant did not have any difficulties which would have warranted his AWOL status.  He further stated that the applicant had previously approached a staff sergeant and another Soldier and informed them that he intended to go AWOL and that if he decided to return, it would be in approximately 29 days.

12. On 4 April 1974, the applicant was dropped from the rolls of the Army, having been in an AWOL status in excess of 29 consecutive days.

13.  On 8 April 1974, by letter addressed to the applicant’s parents, the applicant’s commander notified them that their son was dropped from the rolls of the Army and he was being classified as a deserter.  The commander again appealed to the applicant's parents to urge him to return to his unit if his whereabouts were known.

14.  On 13 May 1974, the applicant surrendered to military authorities at Fort Sill.

15.  The specific facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his records contain a properly-constituted DD Form 214 that shows he was discharged on 9 July 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 in lieu of a court-martial with an undesirable discharge, characterized as under other than honorable conditions.  This form further shows he completed a total of 3 years, 4 months, and 22 days of creditable active service and he had 68 days of lost time.

16.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitation.

17.  The applicant’s records contain a letter, dated 18 June 1975, from the Director of the FBI that shows an individual with a similar first name and the same last name as that of the applicant, but with a different middle name, "R---r," and a different SSN, "xxx-x6-8xx3," had been apprehended and sentenced by the Berlin District Court, Berlin, NH, to 10 months of imprisonment and that he was confined in the Coos County Jail, West Stewartstown, NH.

18.  The applicant submitted a copy of a letter, dated 12 March 2008, from the Commander of the State Police Criminal Records Unit, Merrimack, NH, certifying that the applicant has no criminal history record information in the State of New Hampshire.

19.  The applicant also submitted a copy of a letter, dated 17 March 2008, from his Member of Congress in which he provides an overview of his military background and addresses the invalid letter.  The Member of Congress also states that the applicant had previously suffered a head injury as well as untreated Post Traumatic Stress Disorder, in addition to alcohol dependence.  He adds that the applicant's mitigating circumstances caused him to go AWOL and that his condition at the time of accepting the discharge may not have been fully comprehended.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. 

21.  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.

22.  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.

23.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  

24.  Paragraph 7-2 of Army Regulation 600-37 contains guidance on appeals for removal of OMPF entries.  It states, in pertinent part, the burden of proof to support removal of a document filed in the OMPF rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

2.  The evidence of record shows that the applicant’s OMPF contains a derogatory letter, dated 18 June 1975, from the Director of the FBI that pertains to another individual.  This letter contains the first and middle name and SSN of another individual.  It appears that this letter was erroneously filed in his record subsequent to his discharge.  Therefore, the applicant is entitled to correction of his records to remove this letter.

3.  With respect to the applicant’s discharge, the applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 9 July 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions character of service. The existence of the FBI letter, dated 18 July 1975, in his OMPF had no bearing on his earlier discharge which occurred on 9 July 1974.  

4.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.

5.  The applicant’s service in Vietnam and his multiple awards and decorations are noted.  However, they are not sufficiently mitigating to grant him the requested relief.  Additionally, there is no evidence in the available records nor 
did the applicant provide documentation to warrant an upgrade of his discharge.

6.  There is no evidence in the applicant's records and the applicant did not provide any substantiating evidence that his injury that resulted from his fight caused him to go AWOL.  Furthermore, upon conducting a commander's inquiry, the commander certified that the applicant informed two other Soldiers that he planned to go AWOL and return in approximately 29 days.  Therefore, there is insufficient evidence that would warrant upgrading the applicant’s discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends, in regard to the new issue, that all Department of the Army records of the individual concerned be corrected by removing the FBI letter, dated 18 June 1975, from his OMPF.

2.  In regard to the request to upgrade his discharge, the evidence presented does not demonstrate the existence of a probably error or injustice.  Therefore, 

the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR1999024374, dated 22 July 1999.




      _________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)                                         AR20090011575



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ABCMR Record of Proceedings (cont)                                         AR20090011575



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