BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090014654 


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 (UD) be upgraded to an honorable discharge (HD) and a change to the name recorded in his military record and on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that he feels that he was wrongfully discharged and discriminated against.  He further states he was coerced and intimidated into requesting a discharge out of fear of wrongful arrest and unlawful confinement.   He claims he was represented and advised by hostile counsel.  He also states he had his name legally changed through the court in 1980, and would like it now to be changed in his military records and on his DD Form 214.

3.  The applicant provides the following documents in support of his application:  Department of Veterans Affairs Statement in Support of Claim, dated 5 January 2001; DD Forms 214, dated 6 January 1969 and 7 January 1972; social security number printout; and a State of Colorado Name Change Court Order, dated 21 July 1980.

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 initially enlisted in the Regular Army (RA) and entered active duty on 6 January 1969.  He successfully completed basic training at Fort Bliss, Texas, and advanced individual training (AIT) at Fort Gordon, Georgia.  Upon completion of AIT, he was awarded military occupational specialty 95B (Military Police).

3.  On 6 January 1969, the applicant was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued at the time shows he completed 8 months of active military service.

4.  On 7 January 1969, he reenlisted in the RA for 4 years and remained service on active duty.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist four/E-4 on 14 May 1970 and that this is the highest rank/grade he attained while serving on active duty.  It also shows that during his tenure on active duty he earned the National Defense Service Medal, Parachutist Badge, and Expert Marksmanship Qualification Badge with Rifle and Pistol Bars. 
His record documents no acts of valor or significant achievement.

6.  The applicant's record shows he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offenses indicated:  11 March 1969, for being absent without leave (AWOL) from 28 February through 18 March 1969; 16 June 1969, for signing an official document with another Soldier's name with the intent to deceive; 28 June 1969, for disobeying a lawful order; 18 July 1971, for disobeying a lawful command; and 27 August 1971, for disobeying a lawful command (three specifications) and being disrespectful to a commissioned officer (three specifications).

7.  On 29 July 1971, a special court martial found the applicant guilty of disobeying a lawful command from a lieutenant colonel.  The resultant approved sentence was a reduction to private/E-1.

8.  On 9 September 1971, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 89 and Article 90 of the UCMJ by being disrespectful towards his superior commissioned officer and by disobeying a lawful order from his superior commissioned officer.

9.  On 10 December 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a UD, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

10.  In his request for discharge the applicant acknowledged that he understood that if his discharge request was approved, 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 Federal and State laws.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a UD and elected to submit a statement in his own behalf.  However, a copy of his statement was not available in his military records.

11.  On 17 December 1971, the separation authority approved the applicant's request for discharge and directed that he receive a UD.  On 7 January 1972, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his discharge shows in item 1 (Last Name, First Name, Middle Name) the name he now claims to be incorrect.  It also shows he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of court-martial and that he received a UD.  It further shows that at the time he had completed 2 years, 11 months, and 23 days of creditable active service during the period covered by the DD Form 214 and had accrued 8 days of time lost due to AWOL.

12.  The applicant's official military personnel file and all records on file show the applicant enlisted/reenlisted, served, and was discharged under the same name recorded in all his military records and documents on file.

13.  On 24 September 1983, the Army Discharge Review Board, after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable and it voted to deny his request for a change to the characterization of his service and/or to the reason for his separation.

14.  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 separation authority can authorize a general under honorable conditions discharge (GD) or an HD if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.  At the time of the applicant's discharge, the regulation provided for the issuance of a UD.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.  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's contention that his UD should be upgraded to an HD because he was wrongfully discharged and discriminated against was carefully considered.  However, while the Board takes all allegations of discrimination seriously, there is no evidence of record or independent evidence provided by the applicant that shows he was subjected to any bias or prejudice while serving on active duty.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge 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.

3.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive a UD, which was consistent with regulatory policy in effect at the time and accurately reflected the applicant's overall record of service.

4.  The applicant's desire to have the name recorded in his military records changed to reflect the name he now goes under as a result of a court ordered name change received subsequent to discharge is noted and understood.  However, the applicant enlisted, served, and was separated from the Army in the name that is recorded in his military records.

5.  The Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  Absent any evidence that the applicant has actually suffered an injustice based on the name recorded on his military records and on the specific document in question, there appears to be no compelling reason to compromise the integrity of the Army's records to correct his last name at this late date.

6.  This Record of Proceedings along with the application and supporting documents will be filed in his military record to provide clarity and to deal with any confusion that may arise regarding the difference in the last name on his birth certificate and the last name recorded in his military records.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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.

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)                                         AR20090014654



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ABCMR Record of Proceedings (cont)                                         AR20090014654



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