IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20110023870 


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 under conditions other than honorable discharge be upgraded to an honorable discharge.

   b.  The following items on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show his correct information:

* Social Security Number (SSN) should be xxx-42-xxxx
* date of rank
* date of birth should be 15 April 1952
* selective service number should be added
* service board/local board should be Newark, NJ
* home of record should be New Providence, NJ
* service time should be more than 4 to 7 months
* awards should show award of the National Defense Service Medal and Vietnam [Service Medal]
* training completed should show Basic Training at Fort Dix, NJ and advanced individual training (AIT) at Fort Polk, LA

2.  The applicant states:

a. No lawyer was present at any of his proceedings.

   b. He was wrongly accused of drug use and using needles by unknown parties and he is willing to take a lie detector test to show that he never used or injected any medicines.  He was also accused of being absent without leave (AWOL).

   c. His record has unsigned documents which contain the wrong SSN and birth date.

   d. He has medical and psychiatric problems that were caused by false statements and his problems need to be addressed.  

   e. His records were burned in a fire at the National Personnel Records Center.

f. He is a proud veteran who served the best he could.

   g. He was wounded more than once and the only medical attention he received was a quick patch-up due to the classified work he was doing.

   h. On 1 January 1998, he was admitted to the Department of Veterans Affairs (VA) hospital at Perry Point, MD for help and the most treatment he received was having his teeth worked on.

   i. He prays the Board upgrades his discharge so he can get the help he needs.  Upgrading his discharge will give him the right to some benefits because he did earn more than anyone has given him credit for.

   j. He has been considered disabled because he had post-traumatic stress disorder and small wounds to his body.

   k. His DD Form 214 does not contain his signature.

3.  The applicant provides:

* Self-authored statements
* American Legion membership card
* DD Form 214
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Letter, dated 1 April 2009, from the Disabled American Veterans (DAV), National Service Office, Winston-Salem, NC



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 27 July 1971 for a 2-year period.  He completed basic combat training and went AWOL on 4 October 1971 while attending AIT.  

3.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  

4.  The applicant's DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows:

* his SSN as xxx-32-xxxx
* he enlisted in the Regular Army on 27 July 1971
* his home of record as New Providence (Union), NJ
* his Selective Service Number as "2xxxxxxxxx5" and his Selective Service Local Board as "LB#44 Plainfield (Union), NJ"
* he entered service through the Newark, NJ Armed Forces Entrance and Examining Station (AFEES)
* his date of birth as "15 April 1952"

5.  A DA Form 1695 (Oath of Extension of Enlistment), dated 2 August 1971, shows the applicant extended his enlistment for 12 months.

6.  Special Orders Number 267, Headquarters, U.S. Army Training Center, Infantry, and Fort Dix, Fort Dix, NJ, dated 24 September 1971, shows the applicant qualified for the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) on 13 September 1971 and the Expert Marksmanship Qualification Badge with Hand Grenade Bar on 16 September 1971.

7.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 4 October 1971, shows:

* the applicant was placed in an AWOL status
* his father's Florida address as his home of record

8.  On 3 November 1971, the applicant was dropped from the rolls, placed in a deserter status, and a warrant was issued by the Armed Forces.  His return to military control is not recorded; however, medical board proceedings show he was under military control on 9 December 1971.

9.  Medical Board Proceedings, dated 14 December 1971, show the following:

* he had 111 days of service at the time of the proceedings
* he  was diagnosed with having a drug dependence which existed prior to service
* he was not present during the proceedings and did not present any views in his own behalf
* he was found medically fit 

10.  A Standard Form 513 (Consultation Sheet), dated 14 December 1971, shows the following:

* he was admitted to the U.S. Walson Army Hospital, Fort Dix, NJ on 9 December 1971 with a diagnosis of drug abuse
* he was presently AWOL for two months from a drug treatment program at Fort Polk, LA (drug treatment records and medical records are unavailable)
* he had been using drugs (cocaine, speed, and heroin) for 3 years and self-referred 
   * at the time of the report, he had been injecting speed intravenously
   * he went to the Dix House to turn himself in and was referred to the 
	hospital
* his examination was essentially negative, except for some small needle tracks
* he had a medical condition which should have permanently disqualified him from entry into the service, but did not disqualify him for retention
* he was medically cleared for discharge 
* it was recommended that he be separated from military service

11.  On 16 December 1971, the approval authority approved the findings and recommendations of the Medical Board Proceedings. 

12.  A DA Form 3545 (Deserter Wanted by the Armed Forces), dated 2 May 1972, shows the applicant's status was changed to "AWOL, 0800 hours, 29 March 1972" and he was dropped from the rolls on the same date.  

13.  Special Orders Number 177, Headquarters III Corps and Fort Hood, Fort Hood, TX, dated 31 July 1972, show the applicant was returned to military control in Dallas, TX from an AWOL status on 26 July 1972.

14.  A DA Form 2496 (Disposition Form), dated 1 August 1972, shows the following:

   a. A complete review of his physical and mental examinations failed to reveal any defects which would have contributed to the applicant's misconduct.

   b. The applicant was determined to be mentally fit for duty without profile limitations.  He was responsible for his acts and able to understand and participate in board proceedings. 

15.  A mental health evaluation, dated 1 August 1972, shows the applicant:

* was able to distinguish right from wrong
* was able to adhere to the right
* had the mental capacity to understand and participate in board proceedings
* did meet retention standards

16.  Unit Order Number 104, U.S. Army Personnel Control Facility, Fort Hood, TX, dated 8 August 1972, shows the applicant was reduced in rank/grade from private/E-2 to private/E-1 effective 8 August 1972.

17.  A DA Form 3082-R (Statement of Medical Condition), dated 10 August 1972, shows the applicant signed a statement indicating he had undergone a separation medical examination more than 3 working days prior to his departure from place of separation.  Additionally, he marked the form indicating "there had been no change in his medical condition."

18.  A DA Form 2496-1 (Disposition Form), dated 10 August 1972, shows the applicant acknowledged he was being discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  

19.  On 10 August 1972, the applicant was discharged with an under conditions other than honorable discharge.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  

20.  His DD Form 214 also shows the following:

* his date of rank as an E-1 was 8 August 1972
* he completed 7 months and 27 days of creditable active service
* no awards and decorations
* no completed education and training 
* he was AWOL during the period 29 March 1972 to 25 July 1972
* he authenticated the form
* his date of birth as 15 August 1952
* his Selective Service Number and Selective Service Local Board Number as "Unknown"
* his home of record as "Daytona Beach (Orange), Florida"

21.  The applicant provides self-authored statements, DD Form 214, a DD Form 293, a membership card for The American Legion, and a referral letter from the DAV.

22.  The SSN on the applicant's DD Form 214, xxx-32-xxxx, consistently appears throughout his records and was used at the time of his enlistment.  The SSN he requests be inserted in his records, xxx-42-xxxx, is not found within his records.  

23.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show any military education.

24.  There is no order in the applicant's records and he did not provide orders showing he was in the Republic of Vietnam or that he had any foreign service.

25.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

26.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.	Paragraph 3-7a states 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.

   b.	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.  
   
	c.  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.  

27.  Army Regulation 635-5 (Separation Documents) provides standardized procedures for the preparation and distribution of separation documents for separating Soldiers from active duty.  It provides:

	a.  The home of record is the address shown on the enlistment or induction record (DD Form 4) at the time of entry on active duty.

	b.  Education and training (item 25) is used to enter installation training courses (qualification courses), military correspondence courses, off-duty courses, successfully completed during the period of the DD Form 214.

   c.  Non-Pay Periods Time Lost (item 26a) shows the inclusive dates of days lost or non-credible service time.

28.  Army Regulation 600-8-22 (Military Awards) states the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined.

29.  Army Regulation 600-8-22 states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  Qualifying service also included temporary duty for 30 consecutive days or 60 nonconsecutive days in Vietnam or contiguous areas, except that the time limit may be waived for personnel participating in actual combat operations.  

 DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under conditions other than honorable discharge and amendment of his DD Form 214 to show corrected information was carefully considered and determined to have partial merit.

2.  A review of the applicant's records shows he is entitled to amendment of his DD Form 214 to show the following:

	a.  Showing his birth date as "15 April 1952" rather than "15 August 1952."

	b.  Adding his Selective Service Number and Selective Service Local Board Number, City, and State.

	c.  Showing his date of entry on active duty as "27 July 1971" rather than "17 August 1971."

	d.  Showing he was awarded the National Defense Service Medal, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Hand Grenade Bar).

	e.  Showing his home of record as New Providence, NJ.  His DD Form 4 lists his home of record as New Providence, NJ; therefore, his DD Form 214 should be corrected.

3.  The SSN shown on the applicant's DD Form 214, xxx-32-xxxx, appears on his DD Form 4 and other documents within his military records.  The applicant fails to provide sufficient evidence showing this SSN is incorrect.  The requested SSN was not found within his military records.  Therefore, this issue is without merit.

4.  Unit Order Number 104, dated 8 August 1972, shows the applicant was reduced in rank/grade to private/E-1.  Therefore, the issue regarding his date of rank is without merit.

5.  Although the applicant contends the signature on his DD Form 214 is not his, it appears to be the same signature on his DD Form 4 and other documents within his records.  He has failed to provide sufficient evidence showing it is not his signature.  Therefore, this issue is without merit.

6.  The applicant contends he should have more service credit; however, records show he was in the U.S. Army for the period 27 July 1972 until his discharge on 10 August 1972.  However, he had 185 days of lost time for being AWOL.  Lost time is not counted towards active duty service credit.

7.  Although the applicant contends he completed AIT (a qualification course), his records show he was AWOL during AIT and never completed it.  His military record is void of any completed training authorized to be listed on his DD Form 214.  Further, he fails to provide sufficient evidence showing he completed any authorized training, including AIT.

8.  The applicant's discharge package is unavailable.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 and for the good of the service and to avoid a trial by court-martial which may have resulted in a felony conviction.  Chapter 10 discharges are voluntary requests.   Therefore, it is presumed all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

9.  Based on his record of indiscipline, which includes two instances of AWOL, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or honorable discharge.

10.  The ABCMR also does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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:

a. Amending his DD Form 214 to show the following:

*	Item 9 (Date of Birth) as "15 April 1952"
*	Item 10a (Selective Service Number) and 10b (Selective Service Local Board Number, City, County, State and Zip Code) as shown on his
DD Form 4
   *	Item 17c (Date of Entry) as "27 July 1971"
* Item 21 (Home of Record) as "New Providence, NJ"

   b. Adding to item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the following:

   *	National Defense Service Medal
   *	Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
   *	Expert Marksmanship Qualification Badge with Hand Grenade Bar

2.  The Board further determined that the evidence presented was 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 his:

* SSN
* date of rank
* education and training (training completed)
* Vietnam Service Medal
* signature on his DD Form 214
* upgrading his under conditions other than honorable 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)                                         AR20110023870



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110023870



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1