BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20120000006 


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, in effect, an upgrade of his discharge, payment of wages he did not receive during his service, and correction of his date of birth (DOB).

2.  He states that after basic training, he was not paid each month.  After not being paid for several months he left.  He did not do anything wrong, but the military did by not honoring the contract to pay him each month for his service.  He states there is "no evidence of not being paid because [he] didn't get paid."  He was told his records were burned in a fire at Fort Benjamin Harrison, IN.

3.  He provides a self-authored statement.  He also indicates he submitted documents by fax.  Those documents were not received.

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.  On 27 August 1969, the applicant enlisted in the Regular Army for a period of 3 years.  The DD Form 4 (Enlistment Contract) he signed when he enlisted shows his DOB as 12 June 1950.  A DD Form 398 (Statement of Personal History) he completed shows he entered his DOB in item 5 (Date of Birth (Day, Month, Year)) as "12/6/50."

3.  During his enlistment processing, he signed a DA Form 3286-3 (Statements for Enlistment) acknowledging his initial assignment to training and/or duty would be determined in accordance with the needs of the Army and his enlistment carried with it no guarantee or implied promise that he would be assigned to a specific training, duty, or location.

4.  His DA Form 20 (Enlisted Qualification Record) shows three entries in item 6 (DOB).  The first two, "6 DEC 50" and "12 JUN 50," are lined through and the third is "12 JUN 50."

5.  Item 38 (Record of Assignments) of his DA Form 20 shows:

* on 1 November 1969 after completing basic combat training (BCT), he was assigned to the U.S. Army Signal Corps School, Fort Monmouth, NJ, for advanced individual training (AIT)
* on 2 February 1970, he was assigned to Company A, 2nd Battalion, 4th Brigade, Fort Ord, CA, as a student in duty military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist)
* on 9 March 1970, he was assigned to Company B, 8th Battalion, School Brigade, U.S. Army Southeastern Signal School, Fort Gordon, GA, in duty MOS 36C (wire systems installer)

6.  Item 42 (Remarks) of his DA Form 20 shows he was phased out of AIT on 20 January 1970 due to academic inefficiency.

7.  Item 48 (Date of Audit) of his DA Form 20 shows the information on the form was last audited on 16 September 1971.

8.  The applicant's record is void of documentation showing he successfully completed MOS training.

9.  His record contains three DD Forms 458 (Charge Sheet).  These forms show his DOB as 6 December 1950 and show he was charged with:

* being absent without leave (AWOL) from 15 April 1970 to 27 May 1971
* being disrespectful in language toward a superior officer on 1 July 1971
* being AWOL from 9 August 1971 to 5 June 1972

10.  On 15 June 1972, he consulted with legal counsel who advised him of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, the effects of requesting discharge in lieu of trial by court-martial, and his rights.

11.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he understood if his request were accepted he could be discharged under other than honorable conditions.  He further indicated he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, be ineligible for many or all benefits administered by the Veterans Administration, be deprived of his rights and benefits as a veteran under both Federal and State laws, and encounter substantial prejudice in civilian life.  He elected to submit a statement in his own behalf.

12.  In the statement submitted with his request for discharge, he stated his recruiter led him to believe he would be able to attend the school of his choice, but he was not sent to the course he wanted.  He attempted to resolve the problem, and he was told his record did not show he enlisted for a specific school.  He went home.  After he was apprehended and returned to military control, he was AWOL again and "stayed home trying to keep his family together."

13.  On 29 June 1972, the separation authority approved his request for discharge and directed issuance of an Undesirable Discharge Certificate.  On 10 July 1972, he was discharged accordingly.

14.  His DD Form 214 shows he completed 11 months and 6 days of total active service with 708 days of lost time.  His service was characterized as under conditions other than honorable.  Item 9 (DOB) shows "12 Jun 50."

15.  His record is void of documentation pertaining to his pay.

16.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  He submits a self-authored statement in support of his application.

	a.  He states he was not paid at any of his duty stations after BCT.  He got a pass and went home because he wasn't getting [the training] he was told he would receive if he signed up for 3 years and on top of that he wasn't getting paid.  After he turned himself in on 4 June 1972 at Fort Knox, KY, he reported for pay but received nothing.  He states that paperwork indicated he was paid $333.60, which he did not receive.

	b.  He states that he was put in the stockade on 1 July 1971 and spent 30 days in solitary confinement for "not being nice" to a chief warrant officer because he wanted to get paid.  He states he was let out of solitary confinement right before a court-martial and was told at the court-martial "by judges" that if he did not accept nonjudicial punishment under Article 15, Uniform Code of Military Justice, he would be found guilty and sent to Federal prison.  He states he "had to sign or else" and wonders why that wasn't recorded.

	c.  He states his DOB was changed to "6-12-50."

	d.  He questions why he was branded as a deserter, discharged for the good of the service, and recommended for an Undesirable Discharge Certificate, when all he wanted is what he was told he would receive when he joined and to be paid each month like everyone else.  He states he feels he should not have been treated the way he was when he stepped up to do his part on his own at 19 years of age.

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

	a.  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 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 to an individual who was discharged for the good of the service.

	b.  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.

	c.  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 evidence of record does not support the applicant's assertion that he was AWOL because he had not been paid.  In the statement he provided with his request for discharge for the good of the service, he indicated he was AWOL because he did not receive the training he believed he had enlisted for.  He made no mention of pay problems.  There is no evidence in his record to support his assertion that he enlisted for specific training or his assertion that he was not paid in a timely manner.  Even if there were evidence to support those assertions, neither condition would have justified excusing a charge of AWOL.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His record shows he had 708 days lost due to being AWOL and he indicates he accepted nonjudicial punishment under Article 15, UCMJ, for being disrespectful to a superior officer.  Based on this record of indiscipline, his service clearly 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.  He signed an enlistment contract that showed his DOB as 12 June 1950 and this DOB was used throughout his service.  A lined-through entry on his DA Form 20 and the charge sheets in his record indicate that at some point his month and day of birth may have been transposed and recorded as 6 December 1950, but it is unclear which DOB he claims is correct.

5.  For historical purposes, the Army has an interest in maintaining the integrity 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 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.

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 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)                                         AR20120000006



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ABCMR Record of Proceedings (cont)                                         AR20120000006



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