IN THE CASE OF:	  

		BOARD DATE:  29 January 2013

		DOCKET NUMBER:  AR20120011762 


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.  item 4 (Date of Birth (DOB)) of his DD Form 214 (Report of Separation from Active Duty) be corrected to show he was born on 29 April 1952; and

	b.  his general discharge be upgraded to honorable. 

2.  The applicant states:

* His DOB is 29 April 1952
* His 2 years plus of good/solid military service, life experiences and accomplishments, and service to country and community are sufficient military service for an honorable discharge
* He did not have any Article 15s, courts-martial, or punitive actions   

3.  The applicant provides:

* DD Form 214
* Birth certificate
* Social security card
* Resume
* Diplomas
* College transcripts
* Letters/certificates of commendation/completion/achievement

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 DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows his DOB as 29 April 1952 and that he enlisted in the Regular Army on 25 January 1971 for a period of 3 years.  He completed training and he was awarded military occupational specialty 95C (corrections specialist).

3.  Records show in September 1972 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) (no other details known).

4.  In November 1972, he accepted NJP under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) (two specifications) from 16 September 1972 to 13 October 1972 and 25 October 1972 to 16 November 1972.

5.  In March 1973, he accepted NJP under Article 15, UCMJ for being AWOL (three specifications) from 18 January 1973 to 26 January 1973, 2 February 1973 to 20 February 1973, and 27 February 1973 to 8 March 1973.

6.  On 4 June 1973, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  His unit commander cited:

* He failed to make any attempts to improve his attitude, responsiveness to direction, duty performance, or involvement with drugs
* He is a constant irritant to unit noncommissioned officers (NCOs) in that he requires constant close supervision and his performance of duty even in accomplishing menial tasks is poor
* He is argumentative and frequently poses a challenge to NCOs regarding their authority to give direction
* He has an immature, uncooperative attitude and makes remarks to superiors which border on insubordination
* He is a bad influence on his peers in that he leads them towards poor performance and shirking of duty
* He is completely unreliable and seeks every opportunity to get out of work  

7.  On 4 June 1973, after consulting with counsel and being advised of the recommended separation for misconduct, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

8.  On 11 June 1973, the separation authority approved the applicant's recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.

9.  On 18 June 1973, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  He was issued an Undesirable Discharge Certificate.  He completed 2 years and 18 days of total active service with 126 days of time lost.

10.  Item 4 of his DD Form 214 shows he was born on 11 June 1952.

11.  He provides a copy of his birth certificate which shows his DOB as 29 April 1952.

12.  On 18 November 1976, the Army Discharge Review Board upgraded his undesirable discharge to a general discharge.

13.  He provided letters/certificates of commendation/completion/achievement and various diplomas he earned subsequent to his discharge. 

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

	a.  Chapter 13, paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.


	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 applicant contends he was born on 29 April 1952 and his enlistment contract and birth certificate support this contention.  Based on the foregoing, it would be appropriate to correct item 4 of his DD Form 214 to show his DOB as 29 April 1952.

2.   Although he contends he did not have any Article 15s, evidence shows he received three NJPs during his enlistment.

3.  His post service accomplishments are commendable.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  His record of service included three NJPs and 126 days of time lost.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

6.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his general discharge to honorable.




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 deleting the entry in item 4 of his DD Form 214 and replacing it with the entry 
"52  04  29."

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 upgrading his general discharge to honorable.



      _______ _  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)                                         AR20120011762





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ABCMR Record of Proceedings (cont)                                         AR20120011762



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