IN THE CASE OF:	  

		BOARD DATE:  22 May 2012

		DOCKET NUMBER:  AR20110023340 


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:

	a.  his first name and date of birth (DOB) shown on his DD Form 214 (Report of Separation from Active Duty) be corrected; and

	b. his undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

* his DD Form 214 is incorrect according to his birth certificate
* his first name is Lenny
* his DOB is 30 April 1953
* he went absent without leave (AWOL) because he could not read or write and it was causing problems for him
* Soldiers would make fun of him and laugh at him behind his back
* after he finished jump school we went home on leave and it was during this time he decided not to go back and he got a job at the local tobacco factory
* he still has never learned to read or write  

3.  The applicant provides:

* birth certificate
* DD Form 214
* DD Form 293 (Application for the Review of Discharge from the Army Forces of the United States) 

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 15 September 1972 for a period of 3 years.  His enlistment contract shows his first name as Lennine and his DOB as 13 May 1952.  It appears he completed basic and advanced individual training.     

3.  He went AWOL on 26 March 1973 and returned to military control on 
11 March 1974.  Charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.  
  
4.  On 25 March 1974, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to make a statement in his own behalf.

5.  On 5 April 1974, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an undesirable discharge.

6.  He was discharged on 15 April 1974 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  He completed a total of 7 months and 10 days of total active service with 351 days of lost time.

7.  His DD Form 214 shows his first name as Lennine and his DOB as 13 May 1952.  This DD Form 214 shows a legible signature with the first name as Lennine.  He was separated from the service on temporary records.

8.  All documents contained in his Official Military Personnel File (OMPF) show his first name as Lennine and his DOB as 13 May 1952.

9.  He provides a copy of his birth certificate issued on 31 March 2006 that shows his first name as Lenny and his DOB as 30 April 1953.

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

11.  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.  It states 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.

12.  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, the 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 to an individual who was discharged for the good of the service.
13.  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.  The applicant's service personnel record shows he served on active duty from 15 September 1972 through 15 April 1974.  During his entire period of service he served under the first name of Lennine with a DOB of 13 May 1952.

2.  Although the birth certificate provided by the applicant shows his first name as Lenny and his DOB as 30 April 1953, it appears he appropriately served in and was discharged from active duty using the first name of Lennine with a DOB of 
13 May 1952.

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 first name and DOB 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, which confirms his correct first name and DOB, will be filed in his OMPF.  This should serve to clarify any questions or confusion in regard to the difference in the last name and DOB recorded in his military record and to satisfy his desire to have his correct first name and DOB documented in his OMPF.

5.  He contends he was AWOL because he could not read or write and it was causing problems for him.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to being AWOL.

6.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

7.  Since his brief record of service included 351 days of lost time, his record of service was not satisfactory.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

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)                                         AR20110023340





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ABCMR Record of Proceedings (cont)                                         AR20110023340



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