BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090020742 


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, upgrade of his under other than honorable conditions discharge and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show training as a medical corpsman, duty as a dental assistant at Fort Polk, LA, and his blood type. 

2.  The applicant states at the time of the Vietnam War he was a conscientious objector.  He trained as a medic and was assigned to the Fort Dix hospital after working at Fort Polk, LA, as a dental assistant.  His records did not follow him and were lost in the system.  The only way to get out of the service was to sign the papers for discharge, and he did not realize [the discharge] was under other than honorable conditions.  

3.  The applicant provides a copy of his DD Form 214.

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 for 3 years on 10 January 1969 and was awarded military occupational specialty (MOS) 91A (Medical Corpsman) after completing the 10-week Medical Corpsman course at Fort Sam Houston, TX.  

3.  A DA Form 3286 (Statements for Enlistment) shows the applicant's signature in Part I (General Statement of Understanding) indicating he had read and understood the meaning of the statement "I am not conscientiously opposed, by reason of religious training or belief, to bearing arms or to participating in, or training for war in any form."  

4.  The record is void of documentation indicating the applicant submitted a request to be granted conscientious objector status during his military service.  

5.  A DA Form 20 (Enlisted Qualification Record) shows:

* in item 22 (Military Occupational Specialties), his primary MOS was 91A
* in item 38 (Record of Assignments), the applicant was assigned to a unit at Fort Polk in duty MOS 91E (Dental Assistant)
* in item 38, his last assignment was to the Personnel Control Facility (PCF) at Fort Devens, MA in duty MOS 57A (Duty Soldier) 
* in item 44 (Time Lost), the applicant was absent without leave (AWOL) during multiple periods 

6.  A Standard Form 601 (Immunization Record) shows the applicant's blood type is A+.

7.  On 10 July 1969, applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit on 5 July 1969.  

8.  Summary Court-Martial Order Number 223 shows he was convicted of being absent without leave (AWOL) during the period 6 November 1969 to on or about 20 January 1970.  

9.  A Charge Sheet in the applicant's record shows he was charged with absenting himself from his unit without authority on or about 5 March 1971 until on or about 5 August 1971.  

10.  The record includes the first page of the applicant's request for discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The applicant indicated he understood the implications attached to his request and that if his discharge request was accepted, he would normally be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He further indicated he understood 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 her rights and benefits as a veteran under both Federal and State law, and that he could expect to encounter substantial prejudice in civilian life if he received an undesirable discharge.  He chose not to submit statements on his own behalf.

11.  On 23 September 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, for the good of the service, and directed he be issued an Undesirable Discharge Certificate (DD Form 258A).  A DD Form 214 shows, on 20 October 1971, the applicant was discharged accordingly with a characterization of service under other than honorable conditions.  He completed a total of 2 years, 1 month, and 14 days of active military service.  

12.  The applicant's DD Form 214 shows the following:

* in item 1, the last name R----Q--- (emphasis added)
* in item 12 (Last Duty Assignment and Major Command), "PCF HQS CMD FT DIX NJ 1A"
* in item 23a (Specialty Number and Title), "09B00 Trainee"
* in item 25 (Education and Training Completed), "NA"
* in item 30 (Remarks), "Blood GP Unknown"
* in item 30, 229 days lost

13.  The DD Form 214 was not signed by the applicant or an officer authorized to sign.  

14.  A DD Form 4 (Enlistment Contract - Armed Forces of the United States) and USAREC Form 131-R (Applicant's Statement of Name Change) show the applicant's last name is R----g---.  The DD Form 214 and other documents in the record erroneously show a different spelling of the last name.

15.  On 6 May 1981, the Army Discharge Review Board (ADRB) informed the applicant that his request to change the type and nature of his discharge was denied.
16.  In his application to the ADRB, the applicant wrote, "Psychologically I became unfit for duty in '69' because of family problems.  I tried staying in but to no avail and the only way I was able to get out was by undesirable discharge."

17.  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.  

18.  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.

19.  The version of Army Regulation 635-5 (Separation Documents) in effect at the time of the applicant's discharge stated to:

a.  enter the individual's current unit of assignment and the title of the major 
command or agency having jurisdiction over that organization in item 12,

    b.  enter the individual's primary MOS in item 23a,

    c.  enter service schools successfully completed in item 25, and

d.  enter the individual's blood group, taken from the Immunization Record 
(Standard From 601) or DA Form 20, in item 30 (Remarks). 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of his discharge or correction of his DD Form 214 to show he worked as a dental assistant at Fort Polk.  The evidence of record does support correction of his record to show he completed the 10-week medical corpsman course and to show his blood type.

2.  The applicant has not provided evidence showing he was a conscientious objector, nor did he did cite conscientious objector status in his application to the ADRB.  The evidence of record shows he voluntarily enlisted in the Regular Army and signed a statement indicating he was not conscientiously opposed to bearing arms or to participating in or training for war in any form.  

3.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Although the second page of the applicant's request for discharge is not available, it is presumed he was afforded the opportunity to consult with legal counsel and acknowledged his rights and the implications of his request by signing the request.  The evidence of record does not show, nor has the applicant provided evidence showing, his rights were violated during his discharge proceedings.  

4.  Based on his record of indiscipline, which includes 229 days of being AWOL and conviction by a summary court-martial of an offense punishable under the UCMJ, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or honorable discharge.

5.  Item 12 of the applicant's DD Form 214 shows the duty station and major command that processed his discharge.  There is no provision for entering previous assignments on the DD Form 214.  Therefore, he is not entitled to correction of his DD Form 214 to show he was assigned as a dental assistant at Fort Polk, LA.  

6.  The evidence of record shows the applicant completed the medical corpsman course.  He is entitled to correction of his DD Form 214 to show he completed this course.  

7.  The evidence of record clearly shows the applicant's last name is R----g---.  He is entitled to correction of his DD Form 214 to show his last name is R----g---.

8.  The applicant's Immunization Record shows his blood type is A+.  He is entitled to correction of his DD Form 214 to show his blood type.

9.  The applicant's DD Form 214 was not signed by him or an authorizing officer.  The lack of signatures may raise questions concerning the validity of the document.  Accordingly, it would be equitable to issue the applicant a new, properly completed DD Form 214.  

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 issuing a new DD Form 214 that:

* corrects the applicant's last name
* shows his blood group is "A+"
* shows he completed the 10-week medical corpsman course
* shows his primary MOS is 91A

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 correcting the record to show his assignment as a dental assistant at Fort Polk, LA and upgrading his discharge.  



      _______ _   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)                                         AR20090020742





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ABCMR Record of Proceedings (cont)                                         AR20090020742



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