IN THE CASE OF:	  

		BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130011758 


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 record by:

	a.  upgrading his discharge under conditions other than honorable to an honorable discharge;

	b.  changing his last name to read G_____e instead of G____s;

	c.  changing his Social Security Number (SSN) to read 2XX-4X-XXX5; and

	d.  changing his date of birth (DOB) to read 8 September 1950.

2.  The applicant states that he was 17 years-old when his mother enlisted him in the Army using his uncle's name and an incorrect DOB and SSN.  When he was told he was going to Vietnam at that age, he ran away scared.  Until that point he had never been in trouble with the law.  He has attempted to resolve these matters before and will continue to do so because it is important to him.  He states that upgrading his discharge to honorable should be based upon the fact that he was an underage minor.

3.  The applicant provides:

* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* 2 computer printouts from the Social Security Administration (SSA)
* a Certification of Birth
* a Certificate of Baptism

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 Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File, contains:

	a.  a document entitled "Applicant's Statement of Name Change," dated 20 September 1967.  This form shows the applicant indicated that his name as recorded on his birth certificate was A_____ P____ G_____e and his DOB was 8 September 1950.  He indicated that the name he was currently using was A_____ P____ G____s.  The applicant stated "I hereby state that I have not changed my name through any court procedure; and, that I prefer to use the name A_____ P____ G____s, as a matter of convenience and with no intent to defraud.  I further state that I am the same person whose name appears on the above-mentioned birth certificate."  The applicant authenticated this document by signing it as A_____ P____ G____s.  The document was witnessed and signed by the applicant's mother and a friend. 

	b.  a DD Form 373 (United States Armed Forces - Consent, Declaration of Parent or Legal Guardian), dated 18 September 1967.  This form shows that the applicant's mother certified that he had no other legal guardian than her, and she hereby consented to his enlistment in the Regular Army (RA), subject to all the requirements and lawful commands of the officers who may, from time to time, be placed upon him; and she certified that no promise of any kind had been made to her concerning assignment to duty or promotion during his enlistment as an inducement to her to sign this consent; and she relinquished all claim to his service and to any wages or compensation for such service.  She certified that the applicant's birth date as shown on this form was correct.  She thoroughly understood that she had consented to his enlistment in RA for a period of 3 years.  This form shows the applicant's last name as G____s and his DOB as 8 September 1950.

	c.  a DD Form 398 (Statement of Personal History), rendered at the time of his enlistment which shows his last name as G____s, his DOB as 8 September 1950, and his SSN as 1XX-4X-XXX3.  He authenticated this document by signing it with the last name of G____s.

	d.  a DD Form 4 (Enlistment Record - Armed Forces of the United States), that shows he enlisted in the RA on 27 September 1967 at the age of 17.  His last name is shown as G____s, his DOB as 8 September 1950, and his SSN as 1XX-4X-XXX3.  He authenticated this document by signing it with the last name of G____s.

3.  Headquarters, Special Troops Regiment, U.S. Army Garrison, Fort George G. Meade, MD, Special Court-Martial Order (SPCMO) Number 1225, dated 21 May 1968, shows the applicant appeared before an SPCM where he was arraigned and tried for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by on or about 2 December 1967, without proper authority, departing his organization in an absent without leave (AWOL) status and remaining so absent until on or about 1 May 1968.  He pleaded guilty and was found guilty of the specification and charge.  The sentence was adjudged on 20 May 1968.  His last name is shown as G____s and his SSN as 1XX-4X-XXX3.  

4.  Headquarters, Special Processing Battalion (Provisional), Fort George G. Meade, SPCMO Number 1606, dated 9 December 1968, shows the applicant appeared before an SPCM where he was arraigned and tried for violating Article 86 of the UCMJ by on or about 16 July 1968, without proper authority, going AWOL from his organization and remaining so absent until on or about 29 October 1968.  He pleaded guilty and was found guilty of the specification and charge.  The sentence was adjudged on 25 November 1968.  His last name is shown as G____s and his SSN as 1XX-4X-XXX3.

5.  A DD Form 553 (Absentee Wanted by the Armed Forces), dated 28 August 1969, shows the applicant was AWOL as of 23 July 1969 and was dropped from the rolls as a deserter on 26 August 1969.  His last name is shown as G____s, his DOB as 8 September 1950, and his SSN as 1XX-4X-XXX3.

6.  A thorough review of every document in his AMHRR shows that his last name is shown as G____s, his DOB as 8 September 1950, and his SSN as 1XX-4X-XXX3 consistently until this point in time.

7.  A DA Form 19-32 (Military Police Report), dated 14 October 1969, shows the applicant was apprehended by civil authorities on 4 October 1969 for disorderly conduct and being AWOL.  He was sentenced to 30 days in Schuylkill County prison.  On 9 October 1969, the civil sentence was suspended and the applicant was released to military authorities on this date, then transported to and confined in the House of Correction located in Philadelphia, PA pending disposition.  On 15 October 1969, the applicant was released from the House of Correction to the Special Processing Battalion, Fort George G. Meade for further disposition.  This document shows his last name as G____s and his SSN as 7XX-4X-XXX0. 

8.  A thorough review of every document in his AMHRR shows that from this point in time forward, his SSN consistently appears as 7XX-4X-XXX0.  His record is void of any explanation of how or why the applicant's SSN began to be reported differently at this time.

9.  A DD Form 458 (Charge Sheet), dated 27 October 1969, shows court-martial charges were preferred against the applicant for violating Article 86 of the UCMJ by departing his unit in an AWOL status on or about 23 July 1969 and remaining so absent until on or about 4 October 1969.  His chain of command recommended referral to trial by SPCM.

10.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and the procedures and rights available to him.

11.  On 24 October 1969, following counseling, the applicant submitted a voluntary written request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.  The applicant authenticated this document using the last name G____s and handwrote his SSN as 7XX-4X-XXX0.



12.  The Special Processing Battalion commander noted that the applicant was eligible for a Bad Conduct Discharge due to the offense committed and the fact that he had a record of two previous convictions.  He recommended that the applicant be eliminated from the service with an Undesirable Discharge Certificate in accordance with his request for discharge for the good of the service.

13.  On 12 November 1969, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the issuance of an Undesirable Discharge Certificate.  He also directed that the applicant be reduced to the rank/grade of PV1/E-1 prior to execution of the discharge. 

14.  On 12 November 1969, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, issued an Undesirable Discharge Certificate, and his service was categorized as under conditions other than honorable.  The DD Form 214 that he was issued at the time of his discharge shows in:

	a.  item 1 (Last Name - First Name - Middle Name), his last name as G____s;

	b.  item 3 (SSN), his SSN as 7XX-4X-XXX5;

	c.  item 9 (DOB), his DOB as 8 September 1947; and

	d.  item 32 (Signature of Person Being Transferred or Discharged), that he authenticated this document by signing his last name as G____s.

15.  A thorough review of the applicant's AMHRR failed to reveal any documents showing that he used the last name of G_____e or the SSN of 2XX-4X-XXX5 at any time during his period of service.

16.  The applicant provides:

	a.  a Commonwealth of Pennsylvania, Department of Health, Certification of Birth, issued 1 April 2013, that shows his last name as G_____e and his DOB as 8 September 1950.  This form shows the applicant's father's last name as G_____e.

	b.  a Certificate of Baptism issued by the Saint Francis of Assisi Church, Minersville, PA, on 23 May 2008, that shows the applicant's last name as G____s and that he was born on 8 September 1950.  This form shows the applicant's father's last name as G____s.
	c.  2 computer printouts from the SSA, dated in February and March 2013, that show his last name as G_____e and his SSN as 2XX-4X-XXX5.

17.  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.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

19.  Army Regulation 635-200, 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.

20.  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.

21.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's discharge prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  This regulation establishes standardized policy for the preparation of the DD Form 214.  It states the complete name, SSN, and DOB of the separating service member will be entered on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered.

2.  His record shows he was just over 17 years of age when he enlisted with the consent of his mother.  Evidence shows he committed his offenses at ages 17, 18, and 19.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request for his discharge to be upgraded.

6.  Evidence clearly shows the applicant declared that he desired to serve under the last name of G____s.  A thorough review of the applicant's AMHRR failed to reveal any documents showing that he used the last name of G_____e any time during his period of service.

7.  Evidence clearly shows that the applicant consistently used the SSN of 1XX-4X-XXX3 from his time of enlistment until he departed in an AWOL status on 23 July 1969.

8.  Evidence also clearly shows that the applicant consistently used the SSN of 7XX-4X-XXX0 from the time of his apprehension by civil authorities on 4 October 1969 until he was discharged on 12 November 1969.  His record is void of any explanation of how or why the applicant's SSN was reported differently during this time period, but it was and that is the SSN associated with his charges.

9.  In view of the facts that the last name that the applicant specifically requested to be known by (G____s) was consistently utilized during his entire period of service and that the evidence he provided shows his last name as both G____s and G_____e, there is no basis for changing his record to reflect G_____e as his last name at this time.

10.  The fact that the applicant is on record with the SSA as having SSN 2XX-4X-XXX5 is duly noted.  However, there is no evidence that shows he used this SSN at any time during his period of service.  Therefore, there is no basis for changing his record to reflect this SSN.

11.  Although the applicant's DOB appears in his record as both 8 September 1947 and 8 September 1950 evidence shows that he reported his DOB as 8 September 1950 at the time of his enlistment and this date is further corroborated by his certificates of birth and baptism.  Therefore, it would be appropriate to correct his DD Form 214 to show his DOB as shown on his certificate of birth.

12.  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 the requested name in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army's records at this late date.

13.  The applicant is advised that a copy of this decisional document will be filed in his AMHRR.  This should serve to clarify any questions or confusion in regard to the name recorded in his military records and to satisfy his desire to have his requested name and SSN documented in his AMHRR.

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 current entry in item 9 of his DD Form 214 and replacing it with the entry "8 SEP 50."

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 discharge and correcting his record to show his last name as G_____e or his SSN as 2XX-4X-XXX5.



      _______ _   _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)                                         AR20130011758





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ABCMR Record of Proceedings (cont)                                         AR20130011758



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