IN THE CASE OF:	

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100025103 


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 upgrade of his undesirable discharge.  He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 August 1981 to show his legal birth name and correct date of birth (DOB) and social security number (SSN).

2.  He submits a brief through counsel.  

3.  He provides:

* his DD Form 214 (Report of Separation from Active Duty) for the period ending 24 January 1974
* his DD Form 214 for the period ending 20 August 1981
* his signed affidavit (un-notarized)
* an extract of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service), dated July 1966

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel gives a background of the applicant’s service in the U.S. Army which began in 1972 and he states the applicant was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, with service characterized as “Other than Honorable” in 1974 and he was issued a reentry eligibility code of “3.”


2.  Counsel contends the applicant’s discharge should be upgraded because he:

* changed as a person immediately following his adverse discharge 
* reenlisted 3 years later and earned an honorable discharge from the Army in 1981
* was not afforded an attorney prior to signing his discharge request
* did not attest to his understanding through a written statement and the discharge was improper 
* was not afforded the opportunity to discuss any “prejudice in civilian life” he would later face
* was not told of the loss of Department of Veterans Affairs (VA) benefits resulting from the characterization of his discharge
* was not considered for rehabilitation prior to determination of character of service

3.  Counsel states the applicant’s discharge was not submitted in the proper format under Army regulations in 1973.  Counsel cites conditions in which the applicant’s 1974 discharge under conditions other than honorable would be deemed improper and references Army Regulation 635-200, paragraph 10-2b.

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 29 June 1972.

3.  The documents in his military personnel record shows his:

* last name, first name, and middle name as “M------y, D---d E----d“


* DOB as 24 June 1954 (e.g., DD Form 1584 (National Agency Check Request), DD Form 4 (Enlistment Contract – Armed Forces of the United States), DA Form 20 (Enlisted Qualification Record)) 
* DOB as 24 June 1951 (e.g., DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated
22 March 1973, 10 April 1973, and 31 July 1973; DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 19 November 1973
* SSN as “xxx-xx-xxx5”

4.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under Article 15, UCMJ on four occasions and one conviction by a special court-martial for the offenses of:

* being absent from his place of duty
* being absent without leave (AWOL) from 14 December 1972 to 6 January 1973, 20 to 22 March 1973, and 5 to 22 July 1973
* failing to go at the time prescribed to his appointed place of duty

5.  His DA Form 20 shows he was also in an AWOL status from 9 to                   11 November 1972 and 19 November to 5 December 1973.  His service record does not show he received NJP for these periods of AWOL.

6.  On 1 November 1973, charges were preferred against him for:

* failing to obey a lawful regulation by wrongfully and without authority wearing upon his uniform the Bronze Star Medal, Purple Heart, Vietnam Service Medal, Republic of Vietnam Campaign Medal, First Aviation Patch, Army Crewmember’s Wings, Army Jump Wings, and the rank/grade of private first class (PFC)/E-3
* signing an official record and making a false official statement by reflecting his false DOB
* signing an official record and making a false statement by reflecting his false place of enlistment, appointment, etc., was Da Nang, Vietnam

7.  On 10 December 1973, he completed and signed a Defense Counsel Questionnaire and Sworn Statement.  He stated he wanted to be discharged from the Army because he was not able to cope with the Army’s standards and this seriously affected his physical and mental health.  He indicated he understood that if his request for discharge under Army Regulation 635-200, 


chapter 10 is accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that as a result of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

8.  On 11 December 1973, having been advised by legal counsel of the basis for his contemplated trial by court-martial for offenses punishable by a bad conduct or dishonorable discharge and the rights available to him, he voluntarily requested discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service - in lieu of trial by court-martial.  He elected to submit statements in his own behalf; however, his statement is not contained in his available record.

9.  The applicant's immediate and intermediate commanders recommended approval of his voluntary request for discharge with the issuance of an undesirable discharge.  On 12 January 1974, the separation authority (a major general) approved the discharge request under the provisions of Army Regulation 635-200, chapter 10 with an undesirable discharge and reduction to private (PV1)/E-1.

10.  He was accordingly discharged on 24 January 1974 after completing 1 year, 4 months, and 24 days of total active service with 63 days of time lost.  His
DD Form 214 for this period of service shows in:

* Item 1 (Last Name - First Name - Middle Name) the entry "M------y, D---d E----d“
* Item 3 (SSN) the entry "xxx-xx-xxx5"
* Item 4 (DOB) the entry "54  06  24" (24 June 1954)

11.  He provided a DD Form 214 which covers the period 25 October 1977 through 20 August 1981.  His service record does not include any documents which cover this period of service.  This discharge document shows a Soldier’s:

* last name, first name, middle name as “M------y, D-----d D-----e”
* DOB as 27 June 1957
* SSN as “xxx-xx-xxx4”

12.  He did not provide any official documents (e.g. birth certificate, letter from the Social Security Administration), which shows his legal birth name, DOB, or SSN.

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

14.  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.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

15.  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. 

16.  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.  

DISCUSSION AND CONCLUSIONS:

1.  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.



2.  The applicant provided a DD Form 214 for the period ending 20 August 1981 which shows the name of “M------y, D----d D-----e,” the DOB of 27 June 1957, and the SSN of “xxx-xx-xxx4.”  However, all of the documents in his service personnel record show a different name, DOB, and SSN.  In addition, there is no evidence of this period of service in his records.

3.  His service record is void of evidence and he has not provided any official documents such as his birth certificate and a letter from the Social Security Administration, which shows his legal birth name, DOB, and SSN.  Therefore, there is insufficient evidence in which to grant this portion of his requested relief.

4.  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.  There is no indication that the request was made under coercion or duress.

5.  His service record shows he received four Article 15s, one special 
court-martial, and accrued 63 days of time lost 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 an honorable or a general discharge.

6.  Counsel contends the applicant was not afforded the opportunity to consult an attorney prior to signing his discharge request and that his discharge was improper.  However, evidence of record shows the applicant consulted with legal counsel during his chapter 10 discharge proceedings.  In addition, he completed and signed a Defense Counsel Questionnaire and Sworn Statement acknowledging that he understood that he would lose all of his Federal and State benefits with a chapter 10 discharge.  He also acknowledged that he could expect to encounter substantial prejudice in civilian live by reason of an undesirable discharge.  The evidence of record does not indicate the actions taken in his case were in error or unjust.

7.  In view of the foregoing, there is no basis for granting this portion of his requested relief.


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)                                         AR20100025103



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ABCMR Record of Proceedings (cont)                                         AR20100025103



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