BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110013513 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he ran away from his home in Pennsylvania when he was 15 ½ years of age and went to Texas where he registered for the draft in order to get some identification.  He lied about his age and told them he was born on 6 May 1940 instead of 6 May 1943.  He goes on to state that he joined the Army using a fake birth date.  After completing his basic training his first sergeant confronted him with a Federal Bureau of Investigation (FBI) report and he (the applicant) told the first sergeant (1SG) that he had lied about his age.  He continues by stating that the 1SG told him that he would misplace the report until after he left and hopefully it would not surface again until he was of legal age.

3.  The applicant provides no additional documents with his application.

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 in Abilene, Texas on 22 September 1959 for a period of 3 years.  He indicated at the time of his enlistment that his date of birth (DOB) was 6 May 1940.

3.  He was transferred to Fort Ord, California to undergo his basic training.  On   9 November 1959 an FBI report was forwarded to the commander at Fort Ord, California indicating that the applicant had concealed his civil records at the time of his enlistment and was a possible fraudulent entry.  Although not addressed in the available records, it appears that the applicant was allowed to remain in the Army because he finished his basic training and his advanced individual training (AIT) as a medical corpsman at Fort Sam Houston, Texas. 

4.  Upon completion of his AIT he was transferred to Germany on 5 March 1960 for assignment to a medical company in Knielingen.

5.  On 6 August 1960 nonjudicial punishment was imposed against him for being disorderly off-post.

6.  On 6 December 1960 he was convicted by a summary court-martial of being disrespectful in language towards a superior noncommissioned officer.

7.  On 24 February 1961 he was convicted by a summary court-martial of being absent without leave (AWOL) from 2 February to 4 February 1961.

8.  On 6 March 1961 he was convicted by a summary court-martial of being absent from his place of duty and of being AWOL from 1 March to 2 March 1961.

9.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Veterans Administration in Dallas, Texas on 17 July 1961.  However, his records do contain a duly authenticated DD Form 214 signed by the applicant which shows that  he was discharged under other than honorable conditions on 19 June 1961 under the provisions of Army Regulation 635-208 for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military 

authorities.  He had served 1 year, 6 months and 3 days of active service and had 87 days of lost time due to AWOL and confinement.

10.  A review of his official records failed to reveal that the applicant has a different DOB other than the one he served with.  In fact, the applicant is presently incarcerated under the custody of the Florida Department of Corrections and he is using the same DOB as he used in the Army.

11.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted.  However, given his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110013513





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ABCMR Record of Proceedings (cont)                                         AR20110013513



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