IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100023010 


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 correction of his date of birth (DOB) and an upgrade of his undesirable discharge (UD).

2.  The applicant states:

   a.  he was a 16-year old minor when he enlisted in the Army;

   b.  he completed 3 years of very honorable service which included an 
18-month tour in Vietnam and 11 months as a noncommissioned officer (NCO);
   
   c.  his military problems were due a personality conflict with his senior NCO;
   
   d.  he was threatened, intimidated, and made a mistake;
   
   e.  he was cleared of all charges with the exception of being reduced to private (PVT/E-1) for disrespect towards the officer who harassed him;
   
   f.  after confinement, he went absent without leave (AWOL) and subsequently turned himself in;
   
   g.  a colonel told him after his discharge his paper would go before a review board and based on his honorable service performed and age at the time of his enlistment, the characterization of service would be changed to at least a general discharge (GD), or at best, he would receive an honorable discharge (HD) in the rank of sergeant effective the date of his return from Vietnam; and
   
h.  he discovered his discharge was not changed while filing for social security in August 2010.
   
3.  The applicant provides:

* Self-authored statement
* National Personnel Records Center letter 
* DA Form 20 (Enlisted Qualification Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 4 (Enlisted Record - Armed Forces of the United States)
* Birth Certificate
* Drivers License
* copy of Passport

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 Official Military Personnel File (OMPF) contains a DD Form 4 (Enlistment Record – Armed Forces of the United States) prepared during the enlistment process.  It contains the entry "2 Nov 46" in item 15 (Date of Birth).

3.  The DA Form 20 contains the entry "2 Nov 46" in item 6 (Date of Birth).  All of the documents contained in the applicant's OMPF list his DOB as 2 November 1946.  There are no documents or records in his military file that list his DOB differently.

4.  The applicant's military record shows he enlisted in the Regular Army (RA) on 1 September 1965.  He was trained in and awarded military occupational specialty 95B (Military Policeman).

5.  The applicant's DA Form 20 shows he was advanced to the rank/grade of sergeant (SGT)/E-5 on 15 September 1967, and this was the highest grade he held while serving on active duty.  Item 21 (Time Lost Under Section 972, Title 10, U.S. Code) shows he accrued 243 days time lost due to being absent without leave (AWOL) and confinement during the following periods:

* 5 - 10 November 1968 (6 days)
* 11 - 13 November 1968 (3 days)
* 16 November 1968 - 5 January 1969 (51 days)
* 29 January - 17 June 1969 (140 days)
* 18 - 19 June 1969 (2 days)
* 20 June - 30 July 1969 (41 days)

6.  His military record shows he thrice accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the indicated offenses:

* 16 September 1965, for disobeying a lawful order from his superior NCO 
* 17 September 1968, for disobeying a lawful command from his superior commissioned officer
* 16 October 1968, for misappropriating government property

7.  On 18 December 1968, a special court-martial (SPCM) convicted the applicant of violating Article 89 of the UCMJ for behaving disrespectfully towards his superior commissioned officer on 17 November 1968 and for violating Article 86 of the UCMJ by being AWOL from 5 - 11 November 1968.  The resultant sentence included confinement at hard labor for 3 months and forfeiture of $70.00 pay per month for 3 months.

8.  On 23 June 1969, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL from on or about 29 January through on or about 18 June 1969.

9.  On 8 July 1969, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

10.  In his request for discharge, the applicant acknowledged 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 (VA) and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that he understood he could face substantial prejudice in civilian life if he were issued a UD and elected not to submit a statement on his own behalf.

11.  On 1 August 1969, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant's reduction to the lowest enlisted grade and issuance of a UD Certificate.  On 1 August 1969, the applicant was discharged accordingly.

12.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, having completed 3 years, 2 months, and 27 days of total active service with 244 days of time lost.  Item 9 contains the entry "2 Nov 46."

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

14.  The applicant provides a Certification of Birth filed on 30 December 1948 that lists his DOB as 2 November 1948.

15.  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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UD Certificate would normally be furnished an individual who was discharged for the good of the Service.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOB should be corrected and his UD should be upgraded.

2.  It is clear the applicant's active duty service was performed under the DOB he now claims is in error, and that this DOB was recorded in the military records prepared on him upon his entry on active duty and throughout his active duty tenure.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The information contained therein should reflect the conditions and circumstances that existed at the time the records were created and under which the military service was performed.  Therefore, the DOB listed in the applicant's military records should not be changed.

3.  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 may arise regarding the difference in his DOB.  Filing the Board's decisional document will also guarantee the historical integrity of the applicant's military record regarding the DOB under which he served.

4.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

5.  The evidence of record shows that after having previously accepted NJP on three separate occasions, the applicant later was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for behaving disrespectfully towards his superior commissioned officer and for being AWOL.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

6.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  The applicant’s offenses rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either an HD or a GD.

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)                                         AR20100023010





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ABCMR Record of Proceedings (cont)                                         AR20100023010



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