IN THE CASE OF:	  

		BOARD DATE:	    2 September 2010

		DOCKET NUMBER:  AR20100008897 


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 his date of birth (DOB) be changed from 16 July 1957 to 16 July 1958.  He also requests his undesirable discharge be upgraded.  

2.  The applicant states the following:

* He lied about his age and he now regrets it
* He entered the service when he was 16 and went through training
* He took leave and went AWOL [absent without leave] 
* He got caught and he was discharged 2 days before his 18th birthday
* He would like his discharge upgraded for employment purposes

3.  The applicant provides a copy of his birth registration card, social security card, and driver’s license in support of his application:

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 28 June 1975 with parental consent.  His service record includes several documents which show his DOB as 16 July 1957, such as the following:

* DD Form 373 (Consent, Declaration of Parent or Legal Guardian) 
* DD Form 4 (Enlistment Contract)
* Federal Bureau of Investigation Report
* Standard Form 88 (Report of Medical Examination)
* DD Form 398 (Statement of Personal History)
* DA Form 3975 (Military Police Report)
* DD Form 214 (Report of Separation From Active Duty)

3.  The applicant’s service record does not contain any documents which show his DOB as 16 July 1958.  

4.  On 23 June 1976, charges were preferred against the applicant for being AWOL from 1 November 1975 through 16 June 1976.  His charge sheet shows his DOB as 16 July 1957.  

5.  The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged he understood he could encounter substantial prejudice in civilian life.  He also acknowledged that he could be ineligible for many or all Army benefits administered by the Department of Veterans Affairs (VA) if an undesirable discharge was issued to him.  He did not submit statements in his own behalf.

6.  The separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with the issuance of an Undesirable Discharge Certificate.

7.  On 14 July 1976, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 5 months and 1 day of active military service with 229 days of lost time due to being AWOL.  

8.  The applicant provided a birth registration card issued on 13 September 1985 and his driver’s license issued on 2 July 2008 which show his DOB as 16 July 1958.  
9.  The applicant’s service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.  

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

11.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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.  Although the documents provided by the applicant show his DOB as 16 July 1958, documents in his service personnel record shows his DOB has always been recorded as 16 July 1957.

2.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, those records should not be changed.




3.  While the applicant's desire to have the records changed is understandable, there is no basis for compromising the integrity of the Army's records.  These proceedings will be filed in his military records as a record of the DOB he is currently using.

4.  The applicant states also he would like his discharge upgraded for employment purposes.  However, employment is not sufficiently mitigating to warrant relief in this case.  

5.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

6.  The applicant’s service record shows 229 days of lost time due to being AWOL.  As a result, his service record was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade of his undesirable discharge to a general or fully honorable discharge.

7.  The evidence of record does not indicate the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.

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)                                         AR20100008897



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ABCMR Record of Proceedings (cont)                                         AR20100008897



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