IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100000010 


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 that his DD Form 214 (Report of Separation from Active Duty), issued on 24 June 1974, be corrected to show the correct spelling of his middle name.  He also requests in a second application that his DD Form 214, issued on 30 November 1977, be corrected to show that his service was honorable vice under other than honorable conditions.

2.  The applicant states his middle name was incorrectly spelled as Louis on his first DD Form 214 issued on 24 June 1974 when it should have been Lewis.  He states his middle name is correctly shown as Lewis on his second DD Form 214, issued on 30 November 1977. 

3.  He also states that he was told his discharge would be upgraded to honorable in 6 months.  He also states that young people make many mistakes and those mistakes sometimes cause them great sorrow later in life.  There was one dark spot in his life when he made that one mistake that cost him his military career. However, his service from 1 September 1972 to 24 June 1974 was honorable and reflects no disciplinary action.  He does not dispute that he made a judgment error; but, he does respectfully request that his discharge and military service be reviewed.  

4.  The applicant provides a copy of the following documents:

* his DD Form 214 for the period ending 24 June 1974
* his DD Form 214 for the period ending 30 November 1977

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 1 September 1972 for a period of 3 years.  Item 5 (Last Name, First name, Middle Name) of his DD Form 4 (Enlistment/Contract) shows his middle name as Lewis.

3.  He completed the required training and was awarded military occupational specialty (MOS) 16B (Hercules Missile Crewmember).  

4.  Item 1 (Name) of his DA Form 2-1 (Personnel Qualification Record) shows his middle name is listed as Lewis.  

5.  He was honorably discharged on 24 June 1974 for the purpose of immediate reenlistment.  Item 1 (Name) of his DD Form 214 incorrectly shows his middle name as Louis.

6.  On 25 June 1974, he executed a 3-year reenlistment in the Regular Army.  Item 5 of his DD Form 4 shows his middle name is listed as Lewis. 

7.  His records reveal a history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 23 June 1972, for failing to go at the time prescribed to his appointed place of duty on or about 7 June 1975.  His punishment consisted of a forfeiture of $100.00 pay for 1 month and a suspended reduction to PFC;

   b.  on 28 July 1975, for failing to go at the time prescribed to his appointed place of duty on or about 3 July 1975.  His punishment consisted of forfeiture of $102.00 pay for 1 month, reduction to PFC, 14 days of restriction, and 7 days of extra duty;
	c.  on 30 August 1976, for disobeying an order by getting a haircut on duty hours on or about 12 August 1976 and failing to go at the time prescribed to his appointed place of duty on or about 24 August 1976.  His punishment consisted of a reduction to PFC and 14 days of extra duty and restriction; and

   d.  on 30 September 1976, for failing to go at the time prescribed to his appointed place of duty on or about 9 September 1976.  His punishment consisted of a forfeiture of $50.00 pay, a reduction to private pay grade E-2, and 7 days of restriction and extra duty.

8.  On 6 January 1977, he pled guilty at a summary court-martial to three specifications of being absent without leave (AWOL) from on or about 28 October through 15 November 1976, 15 November through 20 November 1976, and 
20 November through 28 November 1976.  The court sentenced him to a forfeiture of $200.00 pay and confinement at hard labor for 30 days. 

9.  On 7 January 1977, the convening authority approved the applicant's sentence; however, that portion of the sentence in excess of $150.00 was suspended for 6 months until 5 July 1977.  

10.  On 10 February 1977, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his prior misconduct of AWOL and acceptable misconduct.  He was provided an opportunity to submit a statement but elected not do so.  The bar was ultimately approved by his battalion commander.

11.  The facts and circumstances surrounding his 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 30 November 1977 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions character of service.  This form also shows he completed a total of 4 years, 7 months, and 25 days of creditable active service and he had 163 days of lost time.  Furthermore, item 1 shows his middle name as Lewis.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of this discharge within its 15-year statute of limitations.

13.  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.  An under other than honorable conditions discharge is normally considered appropriate.

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support that the applicant's under other than honorable conditions discharge should be upgraded to honorable.  However the evidence supports his request to correct the spelling of his middle name on his 24 June 1974 DD Form 214.

2.  The evidence shows the applicant used the middle name "Lewis" upon his enlistment on 1 September 1972.  This middle name is consistent with the middle name on his DA Form 2-1 as well as other documents he authenticated during his first period of enlistment.  It appears his middle name was inadvertently misspelled on his DD Form 214, dated 24 June 1974.  Therefore, he is entitled to correction of this DD Form 214 to show the correct spelling of his middle name.

3.  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 30 November 1977 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial.

4.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required him to have 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 his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  

5.  Further, it appears his discharge accurately reflects his overall record of service during his last enlistment.  The evidence does show that he received nonjudicial punishment on four separate occasions and a court-martial conviction.  Therefore, there is no basis for granting his request for an upgrade of his discharge to honorable or general.

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 making the following changes to his DD Form 214, issued on 24 June 1974:

   a.  deleting "LOUIS" from item 1; and 
   
   b.  adding "LEWIS" to item 1.

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 30 November 1977 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)                                         AR20100000010



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ABCMR Record of Proceedings (cont)                                         AR20100000010



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