IN THE CASE OF:	  

		BOARD DATE:	10 May 2011  

		DOCKET NUMBER:  AR20100026757


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, in effect,:

* correction of his DD Form 214 (Report of Separation from Active Duty) to show his middle name as "Roy," instead of "Ray," and his effective date of separation as 28 January 1976 vice 28 January 1975
* upgrade of his undesirable discharge to a general, under honorable conditions discharge

2.  The applicant states he is requesting an upgrade of his discharge for the purpose of obtaining medical and other Department of Veterans Affairs (VA) benefits.

3.  The applicant provides his DD Form 214, DD Form 4 (Enlistment Contract - Armed Forces of the United States), and his DA Form 2-1 (Personnel Qualification Record, Part II).

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.  On 23 July 1974, prior to his Regular Army enlistment, he completed a DD Form 398 (Statement of Personal History), wherein he listed his middle name as "Roy."  He reviewed this form and affixed his signature, using the middle name "Roy."

3.  On 7 August 1974, he enlisted in the Regular Army.  His DD Form 4 shows his middle name as "Ray."  He reviewed this form and affixed his signature, using the middle name "Ray."

4.  On 12 August 1974, he completed a DD Form 369 (Police Record Check), in which his middle name is shown as "Ray."  He authenticated this form with his signature, using the middle name "Ray."

5.  On 13 May 1975, he completed a DD Form 93 (Record of Emergency Data), on which his middle name is shown as "Ray."  He authenticated this form with his signature, using the middle initial "R."  

6.  His record contains various forms and orders that list only his middle initial and not his middle name.  A majority of the forms which use his full name show his middle name as "Ray."

7.  DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 14 December 1975, shows he was pending court-martial action for a violation of Article 90, Uniform Code of Military Justice (UCMJ), for striking a superior commissioned officer.

8.  DA Form 4188-R (Military Personnel Office/Finance Office - Verification of Military Personnel Records Jacket and Personal Financial Record) shows his arrival/departure date, and his expiration term of service date, as "28 Jan 76."

9.  DA Form 2446 (Request for Orders) shows he was assigned to the U.S. Army Transfer Point, Fort Campbell, KY, effective "28 Jan 76." 

10.  His discharge packet is not available for review; however, his DD Form 214 shows he was administratively discharged 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 a court-martial.  Additionally, this form shows in:

* Item 1 (Last Name - First Name - Middle Name) his middle name as "Ray"
* Item 9c (Authority and Reason) his separation program designator (SPD) as "KFS" (discharge in lieu of trial by court-martial)
* Item 9d (Effective Date) the entry "75  01  28"
* Item 9e (Character of Service) the entry "under conditions other than honorable"
* Item 9f (Type of Certificate Issued) he was issued a DD Form 258A (Undesirable Discharge Certificate)
* Item 18a (Record of Service) he completed 1 year, 5 months, and 22 days of net active service this period

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

12.  He provided his DD Form 214, DD Form 4, and his DA Form 2-1, all which show his middle name as "Ray."  Item 35 (Section VII - Current and Previous Assignments) of his DA Form 2-1 shows he was discharged effective
"76  01  28."

13.  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.  

14.  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.

15.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  It is important that information entered on the form be complete and accurate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's effective date of discharge was 28 January 1976.  His DD Form 214 inadvertently listed the year of discharge as 1975.  Therefore, his DD Form 214 should be corrected to show the effective date of his discharge as "76  01  28."

2.  With regard to his request for correction of his middle name, the evidence of record shows upon his enlistment, he listed his middle name as "Roy"; however, his enlistment contract was incorrectly completed and showed his middle name as "Ray."  This middle name is consistent with the middle name found on the majority of documents contained in his service record throughout his entire period of military service.  He authenticated many documents by placing his full signature in the appropriate block indicating his name was correct.

3.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should 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, there is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to now record his correct middle name in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.  

4.  The applicant is advised that a copy of this decisional document along with his application will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the middle name recorded in his military record and to satisfy his desire to have his correct middle name documented in his OMPF.

5.  With regard to his request for discharge upgrade, the complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record indicates he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that he voluntarily requested discharge from the Army in lieu of trial by court-martial.

6.  In the absence of evidence to the contrary, it is presumed his discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of service is commensurate with his overall record of military service.

7.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or medical benefits Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory; therefore, he is not entitled to a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 deleting from item 9d of his DD Form 214 the entry "75  01  28" and replacing it with the entry "76  01  28."

2.  The Board further determined 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:

* correcting his DD Form 214 to show his middle name as "Roy"
* upgrading his undesirable discharge to a general, under honorable conditions discharge



      ___________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)                                         AR20100016493



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ABCMR Record of Proceedings (cont)                                         AR20100026757



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