IN THE CASE OF:	  

		BOARD DATE:	    18 October 2011

		DOCKET NUMBER:  AR20110008206 


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 under other than honorable conditions (UOTHC) discharge to an honorable discharge.  Also, he requests that the spelling of his last name be changed from "M----" to "M—s--."

2.  He states he:

* doesn't feel he was educated enough to understand the consequences associated with his court-martial
* entered the U.S. Army with a Vocational Aptitude Battery average of 32.2, which is below established minimums
* failed to qualify for a General Equivalency Diploma (GED)

3.  He provides:

* letter addressed to the Department of Veterans Affairs (VA) Regional Office
* official transcript of GED Tests Results
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 16 January 1979 for a period of three years.  He signed his enlistment contract indicating his last name as 
"M----."

3.  His service record shows he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for the offenses:

* Absent without leave (AWOL) from 6 to 30 May 1980 and 29 March to 31 March 1981
* Dereliction in the performance of his duties
* Wrongfully discharging a firearm

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

* item 1 (Name) – his last name spelled "M----"
* item 21 (Time Lost (Section 972, title 10, U.S. Code) – he was confined on 10 July 1980 and he was AWOL from 23 to 24 March 1981 (AWOL) [no record of nonjudicial punishment for this period of AWOL]
* item 27 (Remarks) – he was arrested by civil authorities in Cumberland County for failure to appear in court and he was released on $100 bond
* item 34 (Signed) - he signed this document as "M----"

5.  The documents in his military personnel records consistently show the spelling of his last name as "M----" throughout his tenure of service.  

6.  On 20 April 1982, charges were preferred against him for being AWOL from 20 April to 20 July 1981 and 22 July 1981 to 13 April 1982.  

7.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the VA if a UOTHC discharge was issued.  He didn’t submit statements in his own behalf.  

8.  During a personal interview with his unit commander on 28 April 1982, the applicant stated he:

* was aware of the nature of the interview and the consequences of a discharge UOTHC
* desired elimination from the service under the provisions of Army Regulation 635-200, chapter 10, under less than honorable conditions.
* departed AWOL from his unit and that his approximate 358 days of AWOL were caused by his inability to adjust to military life
* had a record of AWOL charges for which he received Article 15s 
* his only desire was to get out of the Army and support his family and he would go AWOL again if forced to remain in the Army

9.  The separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of court-martial with a UOTHC discharge.

10.  On 12 July 1982, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UOTHC discharge.  He completed 5 months and 5 days of creditable active service and he had approximately 363 days of lost time.  Item 1 (Last, first, middle) of his DD Form 214 shows the spelling of his last name as "M----.”

11.  He provided a copy of his official transcript of his GED tests results issued on 15 January 2010.  This document shows he passed the GED and his last name is spelled as "M—s--."

12.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   (1)  Chapter 10 of that regulation provides that a member who has 
committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate.
   (2)  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.

   (3)  Paragraph 3-7b states 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.  

   b.  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.  In pertinent part it states that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he doesn't feel he was educated enough to understand the consequences associated with his court-martial.  However, he was advised of the effects of a UOTHC discharge and was afforded the opportunity to submit statements in his own behalf, but he declined.  The lack of education is not sufficiently mitigating to warrant an upgrade of his discharge.  

2.  His service record shows he was charged with the commission of AWOL offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  His service record shows he received three Article 15s, was confined by civil authorities for failing to appear in court, and he has a record of being AWOL for over 300 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general discharge.

4.  For historical purposes, the Army has an interest in maintaining the accuracy 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, this Board is reluctant to recommend that those records be changed.

5.  Although the applicant requests correction of his records to show the spelling of his last name as "M—s--,” all documents in his military service records show he served on active duty using the spelling of his last name as "M----."

6.  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 spelling recorded in his military records and to satisfy his desire to have the correct spelling of his last name documented in his OMPF.

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)                                         AR20110008206





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ABCMR Record of Proceedings (cont)                                         AR20110008206



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