IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120008682 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 3 March 1983 to show in:

* Item 4a (Grade, Rate or Rank) Specialist 4 (SP4) instead of private/PV1 
* Item 4b (Pay Grade) E-4 instead of E-1
* Item 5 (Date of Birth (DOB)) 20 June instead of 20 January 
* Item 12a (Date Entered AD (active duty) This Period) the date he initially entered AD
* Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) an award for valor
* Item 24 (Character of Service) "general"

2.  He states:

	a.  Several items on this DD Form 214 are erroneous.  Items 4a and 4b of his DD Form 214 lists his pay grade as E-1 when in fact his last pay grade was E-4. His rank was not reduced during his period of military service.  His DOB is incorrectly listed as 20 January 19xx.  His birth certificate lists his DOB as
20 June 19xx.  He always celebrated his birthday in June.   

	b.  Item 12a shows he entered AD on 27 September 1979.  However, this cannot not be true because he was stationed at Fort Carson, Colorado (CO), on 18 September 1979.  His son was born on post at Fort Carson, CO, on 18 September 1979, after he had been stationed there almost 2 years.

	c.  He believes his DD Form 214 should show an award for valor, which he received for rescuing two people from a burning house in Colorado Springs, CO between 1980-1981.  He and another Solider saw a home burning, they entered and brought two people out.  For this action, they each received a medal of valor from U.S. Army Major General Hxxxxxxxxx.

   d.  The DD Form 214 that was sent to him in April 2012 shows his character of service as "Under Other Than Honorable Conditions (UOTHC)."  When he was discharged he was told by counsel, at the time, that he would be receiving a general discharge.  He was not aware that he was issued a UOTHC discharge until he received his DD Form 214 in April 2012.
   
   e.  He would appreciate a full investigation into the mistakes on his DD Form 214 and a full correction of his records.  He is in desperate need of services provided by the Department of Veterans Affairs (VA) medical facilities.

3.  He provides 

* DD Form 214
* Certificate of Birth 
* social security card
* Commercial Driver License
* two Texas Veterans Commission Claims Tracking Forms

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’s military records show he enlisted in the New York Army National Guard (NYARNG), in pay grade E-1, on 12 July 1976, for 6 years.  His record contains a DD Form 4 (Enlistment Record – Armed Forces of the United States) that lists his DOB as 20 June 19xx.

3.  He was ordered to ADT (AD training) and entered AD on 2 August 1976.  He was honorably released from AD on 30 October 1976 and reverted back to the NYARNG.  He was issued a DD Form 214 (Report of Separation from Active Duty) that captured this period of AD but did not list his DOB.

4.  He was discharged from the NYARNG on or about 15 February 1978 and his service was characterized as "general."  His military service obligation expired on 11 July 1982.  A National Guard Bureau Form 22 (Report of Separation and Record of Service) is not available for review for this period of service.

5.  Headquarters, First U.S. Army, Fort Meade, MD, published Orders 65-10, dated 5 April 1978, ordered him to AD for 20 months with a reporting date of 
22 May 1978.  

6.  On 23 May 1978, he was reported in an absent without leave (AWOL) status. He returned to military control on 21 June 1978.  He was assigned to Headquarters and Headquarters Battery, 1st Battalion, 27th Field Artillery, Fort Carson, CO, on 27 June 1978 in military occupational specialty (MOS) 13B (Cannon Crewman).  

7.  He was honorably discharged on 26 September 1979 for the purpose of immediate reenlistment.  He was issued a DD Form 214 crediting him with completion of 1 year, 3 months, and 24 of net active service as well as 11 days of lost time.  His DOB is shown as 20 June 19xx.

8.  He reenlisted in the Regular Army (RA), in pay grade E-3, on 27 September 1979, for 3 years.  His DD Form 4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows his DOB as 20 January 19xx.  He served in MOS 76V (Materiel Storage and Handling Specialist).  He was promoted to pay grade E-4 on 1 February 1980.

9.  His records contain a citation and an approval letter which show he was cited for award of the Soldier's Medal for heroism for saving the lives of two civilians in Colorado Springs, CO, while on his way to work, on 16 October 1980, by rescuing the two people from a blazing complex.  

10.  His records show he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on:

* 4 November 1981 for being disrespectful in language towards a noncommissioned officer on 27 October 1981
* 27 May 1982 for absenting himself from his unit on 6 May 1982

11.  On 2 September 1982, he was reported in an AWOL status and on 21 September 1982, he was dropped from Army rolls as a deserter.  He was apprehended by civil authorities and returned to military control at Fort Carson, CO, on 14 December 1982.  

12.  On 17 January 1983, he was convicted by the District Court, El Paso County, State of CO of theft and sentenced to the county jail for 9 months.  Probation was denied.

13.  On 26 January 1983, the applicant’s immediate commander notified the applicant of his intent to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, for Misconduct-Conviction by Civil Authorities.  The applicant was advised that he could receive an honorable, general, or UOTHC discharge.  The applicant was also advised of his rights.

14.  On 26 January 1983, the applicant acknowledged the proposed separation action for conviction by civil court.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged he understood that as a result of the issuance of a UOTHC discharge he might be ineligible for many or all benefits as a veteran.

15.  On 4 February 1983, the applicant’s battalion commander recommended approval of the applicant's s discharge.  

16.  On 22 February 1983, the appropriate separation authority approved the discharge action, reduction to pay grade E-1, and the issuance of a UOTHC discharge. 

17.  On 3 March 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, for Misconduct-Conviction by Civilian Authorities with a UOTHC characterization of service, in pay grade E-1.  His
DD Form 214 shows he was credited with completing 3 years, 2 months, and 
13 days of net active service and 1 year, 6 months, and 9 days of prior active service.  He also had lost time from 4 to 21 June 1982, 8 July 1982, 12 to 14 July 1982, 23 August to 1 September 1982, 2 September to 13 December 1982, 14 to 26 December 1982, and from 7 January to 3 March 1983.  This form also shows in:

* Items 4a and 4b - PV1 and E-1
* Item 5 - 20 January 19xx
* Item 12a - 27 September 1979
* Item 13 - Army Good Conduct Medal, Soldier's Medal, Meritorious Service Medal
* Item 24 – "Under Other Than Honorable Conditions"

18.  He provided a copy of a Certificate of Birth from the City of New York, issued on 23 August 2011, which certifies an individual with the applicant's first and last name was born on 20 June 19xx.  

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

20.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 was a summary of a Soldier's most recent period of continuous service.  It provided a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The regulation specified for:

* Items 4a and 4b, enter the active duty grade of rank and pay grade at the time of separation
* Item 5, enter the last unit of assignment and the major command or agency having jurisdiction over that organization
* Item 12a, enter the date of the first day of the last immediate reenlistment
* Item 13, enter all decorations, medals, badges, citations and campaign ribbons awarded or authorized for all periods of service
* Item 24 enter the type of discharge issued, authorized entries are: Honorable, Under Honorable Conditions (General), UOTHC, Bad Conduct, and Dishonorable

21.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of a conviction by civil authorities.  A UOTHC discharge was normally appropriate for a Soldier discharged under that chapter.  The separation authority could have directed a general discharge if such a discharge was merited by the Soldier's overall record.

   b.  Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

22.  Army Regulation 600-8-22 (Military Awards) states the Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy.  The same degree of heroism is required as for award of the Distinguished Flying Cross.  The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy. Award of the Soldier's Medal will not be made solely on the basis of having saved a life.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  

23.  Army Regulation 600-8-22 states the bronze "V" Device indicates acts of heroism involving conflict with an armed enemy and authorizes the bronze "V" Device in conjunction with awards of the Army Commendation Medal, the Air Medal, and the Bronze Star Medal.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 for the period ending 3 March 1983 listed his DOB as 20 January 19xx.  However, several documents contained in the applicant's military records show his DOB is 20 June 19xx.  Therefore these documents and the document submitted by the applicant are sufficient to correct Item 5 on his DD Form 214 to show his DOB as 20 June 19xx.

2.  With regard to Items 4a and 4b on his DD Form 214 for the period ending 3 March 1983, the evidence of record shows he was reduced to PV1/E-1 on 22 February 1983 as a result of the discharge action under the provisions of Army Regulation 635-200, chapter 14.  There is no evidence he was advanced back to SP4/E-4 prior to discharge on 3 March 1983.  Therefore, he is not entitled to correction of Items 4a and 4b of his 1983 DD Form 214 to show a rank/grade other than that currently listed.

3.  With regard to Item 12a of his 1983 DD Form 214:

	a.  The evidence of record shows he enlisted in the NYARNG on 12 July 1976.  He served on AD from 2 August to 30 October 1967.  He was issued a 
DD Form 214 that captured this period of AD.  

	b.  He entered on AD on 2 May 1978 and he was honorably discharged on 26 September 1979 for the purpose of immediate reenlistment.  He was also issued a DD Form 214 crediting him with 1 year, 3 months, and 24 days of net active service. 

	c.  He immediately reenlisted in the RA on 27 September 1979 for 3 years and he was discharged on 3 March 1983.  He was issued a DD Form 214 that captured his AD service.  

	d.  Prior to October 1979, the Army issued a separate DD Form 214 upon reenlistment.  Consolidation of two or more periods of service on one DD Form 214 was not authorized during the periods referenced.  After October 1979, one DD Form 214 was issued for a Soldier's most recent period of continuous active service. 

	e.  He was properly issued DD Forms 214 covering his periods of service from 22 May 1978 through 26 September 1979 and from 27 September 1967 through his discharge date on 3 March 1983.  Therefore, Item 12a of his 1983 DD Form 214 properly shows any other date.  He will be provided a copy of his first two DD Forms 214.

4.  With regard to an award for valor, a "V" Device indicates acts of heroism involving conflict with an armed enemy.  This is not the case here.  The evidence of record confirms he was awarded the Soldier's Medal for heroism for rescuing two people from a blazing complex.  This award is currently shown on his 1983 DD Form 214.  There is no evidence of record he was authorized any other award(s) for this incident.  Therefore, he is not entitled to correction of his 1983 DD Form 214 to show any other awards.

5.  With regard to the characterization of service:

	a.  The evidence of record shows he was convicted by civilian authorities and sentenced to 9 months in jail which resulted in him being discharged under the provisions of Army Regulation 635-200, chapter 14, for this conviction.

	b.  He was notified by his commander of his intention to discharge him from the Army, and that if discharged, he could receive a UOTHC discharge.  After consulting counsel, he acknowledged the notification, waived his rights, and elected not to submit a statement in his own behalf.   

	c.  His contentions have been noted; however, he has not shown his discharge was unjust or in error.  He provided no evidence or arguments to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general discharge.

	d.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would jeopardized his rights.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed.

	e.  His desire to have his UOTHC discharge upgraded so that he can qualify for medical benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical and/or other benefits administered by the VA.

6.  In view of the foregoing, his records should be corrected as recommended below.

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 amending Item 5 of the applicant's 1983 DD Form 214 to show his date of birth as shown on his 1979 DD Form 214 and birth certificate.

2.  The Board further determined that the evidence presented is 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 the rank/grade, the date of entry, any additional awards, and his character of service.



      _______ _   __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)                                         AR20120008682



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ABCMR Record of Proceedings (cont)                                         AR20120008682



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