IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140009020 


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 upgrade of his discharge to honorable and correction of his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states:

	a.   His DD Form 214 should be corrected at – 

* Item 4 (Date of Birth) shows wrong year of birth
* Item 9f (Type of Discharge) shows he was issued a DD Form 257A (General Discharge Certificate)
* Item 29 (Signature of Person Being Separated) because it was never signed
* Item 27 (Remarks) the number of days absent without leave (AWOL) is wrong because he had approved leave from 30 July to 30 August 1973 but he has lost the record

	b.  He also states he never received a complete copy of his record although he requested it from the Department of Veterans Affairs (VA) for his 1975 Army review board hearing.  

	c.  He was never paid properly, and he was diagnosed with bronchitis while in basic training in 1972.

3.  The applicant provides no substantiating documents.

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.  After 7 days in the delayed entry program, the applicant enlisted in the Regular Army for training in Army Career Group 62 (Engineer Heavy Equipment Operation and Maintenance) on 18 September 1972.  On the DD Form 398 (Statement of Personal History) he gave his date of birth as XX April 1953.  He was approximately 19 1/2 years old and had a 16-year old wife.  

3.  When he enlisted he did not list twin sons, born 4 August 1972, as relatives or dependents.  When this situation was discovered in December 1972 the applicant was recommended for separation for fraudulent entry.  However, the advanced individual training (AIT) company and battalion commanders recommended waiver of fraudulent entry due to the applicant's exemplary record, skills, and attitude. 

4.  The applicant completed AIT as a Rough Terrain Forklift and Loader Operator and was advanced to pay grade E-2 on 11 January 1973.  On 13 February 1973, he reported for duty in Germany.  He served two 30-day periods of temporary duty at two different locations.  

5.  A 2 April 1973 memorandum from battalion headquarters returned the applicant's request for a hardship discharge to the company commander.  The memorandum pointed out several technical deficiencies and also observed, "Since the medical condition of wife is material, have individual obtain statement and/or letters from friends, pastor or anyone who has knowledge of the situation.  His request is only justifiable based on medical condition of his wife (extreme depression, nervousness, threatened suicide)…" 

6.  A DA Form 3835 (Notice of Unauthorized Absence), dated 4 September 1973, filed by A Company, 94th Engineer Battalion (Construction), the applicant's unit in Germany, reported that his status had changed from leave in the United States to AWOL on 31 July 1973 and was dropped from the rolls (DFR) on 28 August 1973.

7.  Prior to the beginning of the AWOL, the applicant's conduct and efficiency ratings had been exclusively “excellent.”  

8.  The applicant was apprehended in his hometown of Evansville, Indiana on 15 November 1973 and reassigned to the Special Processing Company, Personnel Control Facility, Fort Knox, Kentucky

9.  He was notified of his rights under Article 15, Uniform Code of Military Justice (UCMJ) on 29 November 1973 and the record contains a background information sheet on compassionate reassignment that bears the handwritten notation, "Submit on a DA Form 3789."

10.  The applicant again went AWOL on 13 January 1974 and was dropped from the rolls that day.

11.  A 21 January 1974 letter from the Commander, Personnel Control Facility to the Commander, Fort Knox reported that there was no known reason for the applicant to have gone AWOL. 

12.  He returned to military control on 7 August 1974.  On 13 August 1974, charges under the UCMJ were preferred for the two periods of AWOL.  The applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He stated he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he understood he could receive a discharge under other than honorable conditions (UOTHC) and be issued an Undesirable Discharge Certificate.  He indicated he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration (VA).  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life.

13.  On 14 August 1974, he provided a statement on his own behalf that states, in effect, he could not live under the military conditions, the separation from his family, and his continual pay problems.  He stated he had no potential for rehabilitation and choose to be an individual.  He felt that he should be able to quit a job without suffering any negative consequences.  He concluded by stating he would accept an undesirable discharge. 
14.  The chain of command recommended approval of his request and the issuance of a discharge UOTHC.  On 29 August 1974, the separation authority approved the request and directed issuance of a DD Form 258A, Undesirable Discharge Certificate with a UOTHC characterization of service.  

15.  On 27 September 1974, the applicant was separated with an UOTHC characterization of service, and his DD Form 214 shows he was issued a General Discharge Certificate (DD Form 257A).  Item 4 shows the entry for his year of birth as "63."

16.  Apparently in conjunction with the applicant's application to the Army Discharge Review Board (ADRB): 

	a.  his mother-in law wrote a letter, notarized 14 April 1975, in which she related that at the time he had enlisted he had told her that he had been promised that he would not be sent overseas and that after basic training his family would be permitted to live with him.  The applicant's wife had lived with her sister for 3 months, but she had received very little money because the applicant's pay and allotments seemed to always be messed up.  When his request for transfer was denied, he came home on leave to get the necessary statements but he had to go to work because they still had no money.  The FBI [Federal Bureau of Investigation] picked him up and he was sent to Fort Knox, Kentucky.  After 2 1/2 months he still didn't know what would happen to him and they still had no money.  He went AWOL again.  He worked in South Carolina for 8 months before surrendering.  He requested discharge and was sent home on excess leave.  He received a general under honorable conditions discharge in September.

	b.  The City of Easley, South Carolina Police Department certified the applicant had no local criminal record.

	c.  The applicant's employer indicated the applicant had worked there from January to June 1975 and his supervisor considered his work quality, his productivity and his attitude to be excellent.

17.  On 22 July 1976, the applicant appeared in person before the ADRB and testified under oath that – 

* he enlisted to better his education and or training to get some kind of training that he couldn't otherwise get or afford
* he first started having problems in the service when he couldn't get an allotment for his wife
* the entire time he was in Germany it seems his pay was always messed-up; he'd get half pay then full pay then no pay
* he was on a temporary assignment to another company for two months and got neither pay nor mail unless he could go on his own to get it
* he tried to get reassigned but couldn't make that work so he applied for a hardship discharge
* that failed for want of supporting documents and his wife just seemed to lack the initiative to get them together
* he went home on leave to get them but obtaining the documentation was more difficult than he had expected; he went to work but the problems at home were so great that she threatened to leave him if he went back so he stayed home and worked for 4 months
* he was picked-up by the FBI, returned to Fort Knox and then sent to Fort Benjamin Harrison, Indiana
* he wrote that he had no potential for rehabilitation because as far as he knew that meant he’d be sent to Fort Riley, Kansas and he'd still have the same problems-no pay and family separation
* he'd like to get the discharge upgraded because he joined the Army to better himself – he'd gotten the training but no real experience and most of the difficulties he'd experience were not really his fault
* his wife had problems, "nervous trouble and things like that."  He wanted her to go to a doctor, she got fed-up, thought it was too complicated.  "She finally got fed up and didn't do anything about it.  She wouldn't cooperate with me at all on anything."
* after, he came home on leave, he talked to the mental health clinic and was told it might take two months – she wouldn't cooperate – they were having marital problems and went to a marriage counselor – that didn't help because she simply didn't want him to go back to Germany
* he was sure he had not received 3 or 4 months advanced pay "that I would recall"
* he hadn't talked to a counselor or the first sergeant at Fort Knox because he didn’t even know who that was – he changed tires in the motor pool – 
his supervisor was a civilian with no military authority 

18.  On 13 August 1976, the ADRB denied the applicant's request to upgrade his discharge, as a result of a records review.

19.  An online history of United States draft policy indicates that, at the time he enlisted, the applicant would have been differed from the draft and ineligible to enlist because he had minor dependent children. 


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

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests upgrade of his discharge and correction of his DD Form 214 to show his correct year of April 1953.

2.  The record shows that the applicant enlisted fraudulently by concealing the existence of two minor dependents who were less than two months old.  While there is no evidence that he was encouraged to do this, it is noted that he must have known, somehow, that the babies made him ineligible to enlist. 

3.  When his family situation surfaced the applicant was notified of pending separation for fraudulent enlistment.  However, his AIT company and battalion commanders recommended a waiver because the applicant was so capable and willing; therefore, he was retained.  While this action might have appeared good for the Army there appears to have been no realistic appraisal of the family situation.  

4.  It seems unreasonable to believe that a Soldier in pay grade E-2 with an extremely young wife and twin babies could serve successfully.  That's why he was ineligible to enlist in the first place.  

5.  His DD Form 214 in item 9f indicates he received a General Discharge Certificate.  Although this annotation is incorrect, it could have led the applicant to believe he would receive a general discharge under honorable conditions.  Additionally, his capable and willing service indicates that a UOTHC discharge would have been unduly harsh, yet his fraudulent enlistment precludes a fully honorable discharge. 

6.  The follow-on events of the applicant's record simply underline the predictable consequences of retaining him.  He simply shouldn't have been there.

7.  To correct this injustice, the applicant's discharge characterization of service should now be upgraded to a general discharge under honorable conditions.

8.  There is no available evidence that he was on authorized leave in August 1973 as he avers.  There is no basis for changing or removing the lost time. 

9.  The record shows his date of birth as XX April 1953.  The "1963" on his DD Form 214 is a clear typographical error and should be corrected.

10.  In view of the foregoing findings and conclusions, it would be appropriate to rectify this injustice by correcting the applicant’s records 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:

	a.  upgrading the characterization of service to general under honorable conditions; and

	b.  showing in item 4 of his DD Form 214 that his year of birth is 1953.

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 upgrading the discharge to honorable or changing the lost time.

      _______ _   __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)                                         AR20140009020



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ABCMR Record of Proceedings (cont)                                         AR20140009020



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