IN THE CASE OF:	  

		BOARD DATE:	    25 August 2011

		DOCKET NUMBER:  AR20110001132 


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 to an honorable discharge and that his last name be changed to Y____.

2.  He states that after his second tour in Vietnam, he experienced major adjustment problems which in turn affected his sleep and interaction with others.  He also had difficulty adjusting to his assignment at Fort Hood, TX.   

3.  He also states that the Social Security Administration (SSA) reflects his name as Y____.

4.  He provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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.  His records show he was inducted into the Army of the United States on 
21 May 1968 and his last name on the DD Form 47 (Record of Induction) is shown as J____.  After the completion of training, he served in military occupational specialty 71B (Clerk Typist).

3.  On 23 May 1968, he completed a Servicemen’s Group Life Insurance Election Form, which reflects his typed and signed last name as J_____.

4.  His record contains a DA Form 20 (Enlisted Qualification Record) which shows the following information:

* Item 31 (Foreign Service) – he served in Vietnam from 10 January 1969 to 12 January 1970; and from 16 November 1970 to 13 December 1971
* Item 33 (Appointments and Reductions) – the highest rank he attained while serving in the Army was specialist five (SP5) on 24 April 1972
* Item 41 (Awards and Decorations) – he was awarded two Army Commendation Medals, the Air Medal and various service awards
* Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date Expiration Term of Service) further shows:

* Six periods of absent without leave (AWOL) beginning in 1973
* Military confinement from 16 October to 8 November 1968

5.  A review of his record shows he received numerous nonjudicial punishments (NJP) and was tried by a summary court-martial for failing to go to his prescribed place of duty at the prescribed time, failure to stay at his place of duty for the prescribed time and for failure to obey a lawful order.  A review of these documents shows he received the first NJP in July 1968 prior to his tour of duty in Vietnam and received his last punishment in February 1973 just prior to his discharge from the Army.   

6.  His record also shows he was honorably released from active duty on 
14 January 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his Reserve service obligation.  He completed 1 year and 7 months of net active service and had 24 days of lost time due to military confinement.  His records indicate he served in Vietnam from 10 January 1969 through 12 January 1970. 

7.  On 10 November 1970, he enlisted in Regular Army under the last name J____ and served a second tour of duty in Vietnam from 16 November 1970 through 13 December 1971.   

8.  The applicant’s record also shows he was administered NJP under Article 15 of the UCMJ on three occasions during his second tour in Vietnam for failing to go to his prescribed place of duty at the prescribed time, falsifying an official document, and for discharging a .38 caliber weapon inside of a building.  He did not appeal any of the actions. 

9.  He was administered NJP again on three separate dates during the period 
11 July 1972 through 22 January 1973.  Two of the three NJPs show he went absent without leave (AWOL) on two separate occasions and the other NJP shows he failed to go at the prescribed time to his place of duty.  He appealed the later charge and attributed his tardiness to medication.  His appeal was denied.

10.  The facts and circumstances surrounding his discharge action are not in the available record; however, a memorandum dated 2 April 1973 shows he had been previously dropped from the rolls as a deserter and returned to military control on 27 February 1973.  

11.  The applicant’s records contain a copy of Special Orders Number 89, dated 30 April 1973 which shows he was being discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10 (For the Good of the Service).  It was directed that he be issued a DD Form 258A (Undesirable Discharge Certificate). 

12.  Accordingly, he was discharged in the rank and pay grade of Private, E-1, on 1 May 1973 under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as, "Under Other Than Honorable Conditions."  He had completed a total of 4 years and 21 days active military service and had 
25 days of lost time due to AWOL. 

13.  Item 1 Name (Last, First Middle) of his DD Form 214 shows his last name as J___ and he signed this form using the last name J____.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the same document shows that he was awarded the National Defense Service Medal, Vietnam Service Medal with one silver and one bronze service star, Republic of Vietnam Campaign Medal with Device (1960), Air Medal, and the Army Commendation Medal (1st Oak Leaf Cluster).  

14.  His record does not show he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

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 Veterans Administration 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.  

16.  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.

17.  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.  

18.  Army Regulation 635-5 (Separation Documents) provides guidance on the preparation of the DD Form 214.  This regulation has historically stated, in pertinent part, that item 1 of the DD Form 214 will contain the name taken from the Soldier's personnel record.

DISCUSSION AND CONCLUSIONS:

1.  His request to upgrade his undesirable discharge and to change his last name was carefully considered; however, it is not supported by the evidence of record. 

2.  All documents in his personnel record reflect the last name as J____ and he signed all documents using the same last name.  

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 his last 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.  He is advised that a copy of this decisional document along with his application and the supporting evidence he provided, 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 last name recorded in his military record and to satisfy his desire to have his correct last name documented in his OMPF.

5.  He contends his disciplinary problems did not start until his return from Vietnam.  His entire record of service was reviewed and shows he received two NJPs and was tried by a summary court-martial prior to his first tour in Vietnam.  In addition, his record contains several other actions of NJP which occurred while in Vietnam and after his return.  

6.  His discharge packet is not available for review by the Board; therefore, there is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on the guideline prescribed in Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  

7.  In connection with such a discharge, he would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army, in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offenses under the UCMJ.  

8.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and it is believed that the reason for discharge and the characterization of service are both proper and equitable.

9.  His record contains no documentary evidence of acts of valor or special recognition that would warrant an upgrade of his undesirable discharge to either an Honorable Discharge or a General Discharge.  Therefore, there is insufficient evidence to grant him relief in this case.

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)                                         AR20110001132



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ABCMR Record of Proceedings (cont)                                         AR20110001132



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