BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100009619 


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 discharge characterized as under other than honorable conditions be upgraded to honorable.  He also requests that his name be changed from "N____ B____ J____" to "N____ B____ A____" on his 4 May 1981 DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states the infractions occurred in the service over 31 years ago and he is very remorseful for his past actions.  He adds that he is homeless, has no income, and needs his discharge upgraded to receive Department of Veterans Affairs medical benefits.

3.  The applicant provides a copy of his DD Form 214 and National Guard Bureau Form 22 (Report of Separation and Record of Service).

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 enlisted in the Army National Guard on 8 October 1976.  His enlistment documents show his name as "N____ B____ J____."  On 3 August 1979, the applicant was ordered to active duty.

3.  On 23 February 1981, nonjudicial punishment was imposed against the applicant for disobeying a lawful order from an officer and a noncommissioned officer.  His punishment consisted of a forfeiture of $200.00 pay per month for 2 months (suspended), 40 days of restriction (14 days suspended), and 40 days of extra duty (14 days suspended).

4.  On 5 March 1981, his suspension of punishment of a forfeiture of $200.00 pay per month for 2 months was vacated.

5.  The facts and circumstances pertaining to the applicant's discharge proceedings are not contained in his available military records.

6.  His record contains a duly-constituted DD Form 214 that shows he was discharged on 4 May 1981 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-33b(1), for frequent involvement in incidents of a discreditable nature with civil or military authorities.  It shows his discharge was characterized as under other than honorable conditions.  It further shows he completed 1 year, 6 months, and 25 days of total active service during this period with lost time from 24 November 1980 to 29 January 1981.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  All the documents contained in the applicant's file, such as his DD Forms 214, DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States), DA Form 2-1 (Personnel Qualification Record), and numerous orders show his name as "N____ B____ J____."

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14-33 establishes policy and prescribes procedures for separating members for patterns of misconduct.  Paragraph 
14-33b(1) states that patterns of misconduct include frequent incidents of a discreditable nature with civil or military authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-39 states that a discharge under other than honorable conditions is normally appropriate for a member who is discharged for acts and patterns of misconduct.

10.  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.

11.  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.

12.  Army Regulation 635-5 (Separation Documents) states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  It states that for item 1 (Name (Last, First, Middle)), enter in all capital letters and include "SR," "JR" or "II," if appropriate.

DISCUSSION AND CONCLUSIONS:

1.  Although a copy of the applicant's chapter 14 discharge packet is not in the available records, the presumption of regularity must be applied.  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 failed to submit evidence that would satisfy this requirement.

2.  The fact that the applicant is currently experiencing an economic situation and is in need of medical benefits is unfortunate.  However, there are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

3.  The evidence of record shows that all the documents contained in the applicant's military records, to include his enlistment/reenlistment documents, orders, and personnel qualification record, show his name as "N____ B____ J____."  Therefore, in the absence of a birth certificate or official document verifying the current name he uses was in effect during the period he served in the military, the applicant's name as shown on his DD Form 214 is correct as constituted.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100009619



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR