IN THE CASE OF:	  

		BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090016017 


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:

   a.  upgrade of his general, under honorable conditions discharge to an honorable discharge;

   b.  change of his name on his DD Form 214 (Report of Separation from Active Duty) for the period ending 6 March 1979 from H--- W---- S-------- to D---- W----- A-------;

   c.  adding the Dragon Gunner Course to his DD Form 214; and

   d.  awarding him the Korea Defense Service Medal and the Expert Marksmanship Qualification Medal with Pistol (.45 Caliber) Bar.

2.  The applicant states the U.S. Army Recruiting Command failed to gain parental consent when he enlisted in the Army at 17 years of age and due to the error, his discharge should be upgraded.  The applicant states after he separated from the military he had his name legally changed and his records should show his correct name.  The applicant continues that his DD Form 214 should be corrected to show award of the Korea Defense Service Medal, Expert Marksmanship Qualification Medal with pistol (.45 Caliber) Bar, and that he completed the Dragon Gunner Course.



3.  The applicant provides his DD Form 214; a name change order from the Commonwealth of Kentucky Christian County District Court, dated 27 July 1978; two name change orders from the State of Washington, District Court, Thurston County, dated 24 August 2006 and 15 May 2008; a purported photo of himself dressed in duty uniform with unit police accessories; a letter of support from a former fellow Soldier, dated 25 March 2009; and a letter of support from a former Sergeant Major of the Army, dated 20 April 2009.

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 was born on 3 September 1959.  On 25 January 1977, he enlisted in the Regular Army at the age of 17 with parental consent for 3 years in pay grade E-1.  A DD Form 1966/6 (Application for Enlistment - Armed Forces of the United States), dated 27 December 1977, completed at the time of his enlistment shows his mother consented to his enlistment and the form was witnessed by the proper official.

3.  All of the applicant's enlistment documents show his first name, middle name, and last name was D---- W---- A------- at the time he enlisted.

4.  The applicant successfully completed basic combat and advanced individual training.  He was awarded military occupational 11B (Infantryman).  On 19 June 1977, he was assigned to B Company, 1st Battalion, 32nd Infantry, Korea for permanent duty.

5.  On 13 October 1977, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from a superior noncommissioned officer (NCO).  On 28 May 1978, he departed Korea.  On 28 June 1978, he was assigned to A Company, 2nd Battalion 327th Infantry, Fort Campbell, KY.

6.  A DA Form 4187 (Personnel Action), dated 1 December 1978, shows the applicant requested his first name, middle name, and last name be changed from D---- W---- A------- to H--- W---- S--------.  The request was verified and approved by his company commander, which is confirmed by the name change order from the Commonwealth of Kentucky Christian County District Court, dated 27 July 1978.

7.  During the applicant's assignment to A Company, 2nd Battalion, 327th Infantry he received the following counseling statements:  

* 1 August 1978 for being absent
* 5 September 1978 for conduct and efficiency
* 15 September 1978 for conduct and efficiency
* 21 September 1978 for misconduct
* 18 October 1978 for poor conduct and efficiency
* 16 November 1978 for performance
* 1 February 1979 for being absent
* 2 February 1979 for dereliction of duty and tardiness

8.  On 21 February 1979, the applicant’s commander submitted a request to discharge the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)).  The commander based his recommendation on the fact of the applicant's disregard for his supervisors, his lack of self-discipline, and negative attitude.  Despite numerous counseling sessions, he needed constant supervision to insure that he met the minimum standards of a Soldier.

9.  On 21 February 1979, the applicant acknowledged notification of the contemplated action and voluntarily consented to the discharge.  He acknowledged that he had been provided the opportunity to consult with counsel and he waived his right to submit a statement in his behalf.

10.  On 21 February 1979, the appropriate authority approved the recommendation to administratively separate the applicant and directed he receive a general, under honorable conditions discharge under the provisions of Army Regulation 635-200, paragraph 5-31, for failure to maintain acceptable standards for retention.

11.  On 1 March 1979, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order from a superior NCO.



12.  On 6 March 1979, the applicant was discharged after completing 2 years, 1 month, and 12 days of creditable active service.

13 . Item 9 (Awards, Decorations, and Campaigns) of the applicant's DA Form 
2-1 (Personnel Qualification Record - Part II) shows he qualified as an expert with the .45 caliber pistol on 19 January 1979.  Item 17 (Civilian Education and Military Schools) does not show the Dragon Gunner Course.

14.  There are no orders in the applicant's service personnel records awarding him the Expert Marksmanship Qualification Badge with Pistol Bar or a certificate of completion for the Dragon Gunner Course.

15.  The applicant's DD Form 214 for the ending period 6 March 1979:

	a.  shows his last name, first name, and middle name as S--------, H--- W---- in item 1 (Last Name, First Name, Middle Name);

   b.  does not show award of the Korea Defense Service Medal or the Expert Marksmanship Qualification Badge with Pistol Bar) in item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Authorized or Awarded); and
      
   c.  does not show completion of the Dragon Gunner Course in item
27 (Remarks).

16.  The applicant provided a name change order from the State of Washington, Thurston County District Court, dated 24 August 2006, that indicates his first name, middle name, and last name had been changed from H--- W---- S-------- to D---- B. W-----.

17.  The applicant provided a name change order from the State of Washington, Thurston County District Court, dated 15 May 2008, that indicates his first name, middle name, and last name has been changed from D---- B. W----- to 
D---- W---- A-------.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  In pertinent part at the time, it provided that members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential could be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. 

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

20.  Army Regulation 635-200, Section II (Minority), provides that a Soldier will be released from custody and control of the Army because of void enlistment if, upon receipt of satisfactory proof of date of birth, it is shown that he/she was less than 17 years of age at the time of enlistment and that he/she has not yet attained that age.  It further provides, in pertinent part, that a Soldier will be released from custody and control of the Army for minority upon application of his/her parents or guardian made within 90 days after the Soldier's enlistment, unless charged with a serious offense committed after attaining the age of 17, if there is satisfactory evidence that the Soldier is under 18 years of age or the Soldier enlisted without the written consent of his/her parents or guardian.

21.  Army Regulation 600-8-22 (Military Awards) states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.)

22.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

23.  Army Regulation 635-5, in effect at the time, stated for item 27, list in-service training courses successfully completed during the period of service; e.g. medical and dental, electronics, supply, administration, personnel, or heavy equipment operations.  This information is to assist the member after separation in job placement and counseling; therefore, training courses for combat skills will not be listed.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the U. S. Army Recruiting Command failed to gain parental consent when he enlisted in the Army at 17 years of age and due to the error, his discharge should be upgraded.  Evidence of record shows that the applicant's age at the time of his enlistment he was 17 years, 4 months, and
23 days of age.  However, the applicant's DD Form 1966/6 completed at the time of his enlistment indicates his mother consented to his enlistment as witnessed by a recruiting official.  Therefore, there is no basis granting this portion of the applicant's requested relief.

2.  The applicant requests his first name, middle name, and last name be changed on his DD Form 214 from H--- W---- S-------- to D---- W---- A-------.  He provided copies of his a name change orders from the Commonwealth of Kentucky Christian County District Court and the State of Washington, District Court Thurston County that show:

	a.  in July 1978 he changed his first name, middle name, and last name from 
D---- W---- A------- to H--- W---- S--------;

	b.  in September 2006 he changed his first name, middle name, and last name from H--- W---- S-------- to D---- B. W-----; and

	c.  in May 2008 he changed his first name, middle name, and last name from 
D---- B. W----- to D---- W---- A-------.

3.  These documents are insufficient to change his first name, middle name, and last name to D---- W---- A-------.  The applicant enlisted in January 1977 under the name of D---- W---- A------- and partially served with that name until he had it legally changed in December 1978 to H--- W---- S--------.  He served under this legally changed name until his separation from the Army.  He has not shown that the Army's records are in error.

4.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in the available records should reflect the conditions and circumstances that existed at the time the records were created.  While it is understandable that he desires to have the name that he now uses recorded in his records this is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.

5.  The applicant is advised that this Record of Proceedings, along with his application and supporting documents, will be filed in his military record in order 
to provide clarity and to deal with any confusion that might arise regarding the difference in his name.  Filing the Board's decisional document will also guarantee the historical accuracy of the applicant's military record regarding the name under which he served.

6.  The applicant contends that the Dragon Gunner Course should be added to his DD Form 214.  There is no evidence in the applicant's available records and he has not provided evidence that shows he completed the Dragon Gunner Course.  Additionally, Army Regulation 635-5 states that training courses for combat skills will not be listed in item 17 of the DD Form 214.

7.  Evidence shows that the applicant served with B Company, 1st Battalion, 32nd Infantry in Korea.  He met the eligibility criteria for award of the Korea Defense Service Medal.  Therefore, his DD Form 214 should be amended to add this award.

8.  The applicant contends that his records should be corrected to show he was awarded the Expert Marksmanship Qualification Badge with Pistol Bar.  Although there are no orders in the applicant's available records that show award of the Expert Marksmanship Qualification Badge with Pistol Bar, his DA Form 2-1 does show this pistol qualification.  Therefore, there is sufficient evidence to correct his records to show the Expert Marksmanship Qualification Badge with Pistol (.45 caliber) Bar.

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 that all Department of the Army records of the individual concerned be corrected by adding to item 26 of his DD Form 214 the Korea Defense Service Medal and the Expert Marksmanship Qualification Badge with Pistol (.45 Caliber) Bar.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 
denial of so much of the application that pertains to upgrading his discharge, changing his name, and adding the Dragon Gunner Course his DD Form 214.



      ____________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)                                         AR20090016017



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ABCMR Record of Proceedings (cont)                                         AR20090016017



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