IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140008925 


THE BOARD OF OFFICERSRD 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.  an upgrade of his discharge under other than honorable conditions to general under honorable conditions,

	b.  in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 3 August 1961 to show:

* his service number (SN) as RA XX XXX 357
* his year of birth as 1936
* his social security number (SSN) as XXX-XX-5464
* his enlistment date as November 1954

	c.  correction of his 4th Army Form 135 (Judge Advocate) (Personal Data Regarding Accused) to show his home address as Travis County, TX, instead of Nueces County, TX.

2.  The applicant states his military records contain incorrect information.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* letter from the National Personnel Records Center, dated 21 April 2014
* 4th Army Form 135
* DD Form 214 for the period ending 3 August 1961
* certified birth certificate reproduction
* driver's license
* social security card

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 complete military records for the period 23 February 1955 through 19 October 1956 are not available for review.

3.  The applicant's Standard Form 88 (Report of Medical Examination), dated 3 February 1955, shows:

* his name as J__SE F____ L____, JR.
* his home address as General Delivery, McNeil, TX
* his place of birth as McNeil, TX

4.  The applicant enlisted in the Regular Army on 23 February 1955 under the name J__H F____ L____, JR.  He later shortened his first name to J__E.   He was assigned Army SN RA XX XXX 357.

5.  A U.S. Army Europe Form 2379 (Basic Outpatient Medical Record) shows:

* his name as J__H R. L____
* his year of birth as 1937
* his mother, T__E L____, as the emergency addressee with the address General Delivery McNeil, TX

6.  A DA Form 8-24 (Sick Call Report) shows a handwritten change of the applicant's first name from J__H to J__E.

7.  A DD Form 789 (Unit Punishment Record) shows he committed the following offenses:

* failing to maintain government property on 26 April 1956
* failing to repair for extra duty and bed check on 30 April 1956
* being absent without leave (AWOL) on 7 June 1956
* having a uniform violation on 19 June 1956

8.  A DD Form 493 (Extract of Military Records of Previous Convictions) shows he was convicted by a summary court-martial of being AWOL on or about 9 August 1956 until on or about 10 August 1956.

9.  An AS Form 291 (Personal History Statement), dated 10 September 1956, shows his year of birth as 1937.

10.  On 12 September 1956, the applicant was examined and determined to have no disqualifying mental or physical defects sufficient to warrant separation under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

11.  On 13 September 1956, his commander submitted a request to convene a board of officers to determine whether he should be discharged prior to the expiration of his term of service.  His commander cited his repeated petty offenses not warranting trial by court-martial as the basis for the request.  He further stated the applicant was not reliable or trustworthy and he was a habitual shirker.  The request also shows:

* the applicant failed to repair for extra duty and missed bed check on or about 30 April 1956 – he received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for this incident
* the applicant was AWOL on or about 7 June 1956
* the applicant was AWOL on or about 9 August 1956 and he was convicted by a summary court-martial
* the applicant received "poor" conduct and efficiency ratings

12.  On 13 September 1956, the applicant acknowledged he was afforded the opportunity to consult with counsel; however, he declined this right.

13.  On 18 September 1956, the applicant was notified to appear before a board of officers on 20 September 1956.

14.  On 20 September 1956, a board of officers convened with the applicant and his counsel present.  After careful consideration of all the evidence, the board of officers found evidence of unfitness which rendered the applicant's service as undesirable.  The board of officers recommended the applicant's separation with an undesirable discharge.

15.  On 26 September 1956, the separation authority approved the findings of the board of officers and directed the issuance of an Undesirable Discharge Certificate.

16.  On 18 October 1956, the applicant underwent a separation physical which determined he had no disqualifying mental or physical defects and he was able to distinguish right from wrong and to adhere to the right.

17.  On 19 October 1956, the applicant was discharged under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.

18.  His DD Form 214 for the period ending 19 October 1956 shows:

* his name as J__E F____ L____, JR.
* his SN as RA XX XXX 357
* his year of birth as 1937
* his home of record as McNeil, TX, in Travis County

19.  His Undesirable Discharge Certificate shows:

* his name as J__E F____ L____, JR.
* his SN as RA XX XXX 357

20.  Following a break in service, the applicant was inducted into the Army of the United States on 23 August 1960.  He was assigned Army SN US XX XXX 098.

21.  His DD Form 47 (Record of Induction) shows:

* his name as F____ P____ L____, JR.
* his mailing address as General Delivery, McNeil, TX
* his year of birth as 1937
* his place of birth as McNeil, TX

22.  Item 9 (Prior Military Service) of his DD Form 47 is marked "No."

23.  Records show the applicant was AWOL on 1 October 1960 and he surrendered to military authorities on or about 28 December 1960.
24.  On 11 May 1961, the applicant underwent a psychiatric evaluation which shows:

* he was in confinement for being in AWOL for over 80 days while still in basic training at the time of his evaluation
* he was apprehended while he was AWOL and charged with car theft
* he had no disqualifying mental or physical defects sufficient to warrant his discharge under the provisions of Army Regulation 635-40A
* he was mentally responsible to distinguish right from wrong, adhere to the right, and cooperate in his own defense
* he was cleared for any administrative action deemed appropriate by his command

25.  His DD Form 93 (Record of Emergency Data), dated 14 June 1961, shows his mother's name as T____ P____ L____ and her address as General Delivery, McNeil, Nueces County, TX.

26.  U.S. Army Garrison Special Troops Special Court-Martial Order Number 133, dated 26 June 1961, shows the applicant pled guilty and was found guilty of:

* being AWOL on or about 25 September 1960 to on or about 28 December 1960
* being AWOL on or about 8 February 1961 until on or about 8 May 1961

27.  On 21 July 1961, his commander notified him he was initiating action to separate him for unfitness under the provisions of Army Regulation 635-208.  His commander advised him of his rights and recommended an undesirable discharge.

28.  On 21 July 1961, the applicant acknowledged receipt of the discharge notification under the provisions of Army Regulation 635-208.  He waived his right to a hearing before a board of officers, elected not to submit statements in his own behalf, and elected not to be represented by counsel.  He also acknowledged he understood he could be deprived of many or all rights as a veteran if an undesirable discharge were issued and he could expect to encounter substantial prejudice in civilian life in situations where the type of service rendered in the Armed Forces could have a bearing.

29.  On 26 July 1961, the separation authority approved the applicant's discharge for unfitness and directed the issuance of an Undesirable Discharge Certificate.

30.  On 3 August 1961, the applicant was discharged under other than honorable conditions.  His DD Form 214 for this period shows his name as F____ P____ L____, JR.  Item 23 (Home of Record at Time of Entry into Active Service) of this form shows McNeil, TX, as being in Travis County.  Item 32 (Remarks) of this form shows his SSN as XXX-XX-5464.

31.  The applicant provided a certified true and correct reproduction of his birth certificate issued on 20 October 1999 that shows:

* his name as F____ P____ L____, JR.
* his year of birth as 1936
* his mother's name as T____ P____
* a supporting document for issuance of the reproduced birth certificate as a copy of his social security application with the SSN XXX-XX-5464

32.  The applicant provided a copy of his 4th Army Form 135 that shows his home address as McNeil, Nueces County, TX.

33.  The applicant also provided a copy of his driver's license and social security card that show his name as F____ P____ L____, JR.  His social security card shows his SSN as XXX-XX-5464.

34.  His DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) shows the following entries:

* item 1b (Name – Last, First, Middle Initial) – L____, J__E F. JR. – the first name and middle initial are lined through and amended to read F____ P.
* item 1d (SN) – RA XX XXX 357
* item 1e (SSN) – XXX-XX-5464

35.  His records are void of and he failed to provide any evidence showing he served in 1954.

36.  The Handbook of Texas shows McNeil, TX, is located in Travis County.

37.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included repeated petty offenses/frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the 


judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

38.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

39.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214.  It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 for the period ending 3 August 1961 contains erroneous information was carefully considered.

2.  His records are void of and he failed to provide any evidence showing he served in 1954.

3.  Records show the applicant used the name J__H F____ L____, JR., when he enlisted in the Regular Army in 1955.  He then changed his first name from J__H to J__E through common use.
   
4.  Records show the applicant used the name F____ P____ L____, JR., when he was inducted into the Army of the United States on 23 August 1960.



5.  His DD Form 47 shows his birth year as 1937, his enlistment date as 23 August 1960, and his address and place of birth as McNeil, TX.  His records contain no evidence showing his birth year as 1936.

6.  Although his 4th Army Form 135 lists his home address as Nueces County, TX, this was a harmless administrative error and his DD Forms 214 properly show his home of record as Travis County, TX.

7.  Although he submitted a copy of his birth certificate reproduction, driver's license, and social security card that show his name as F____ P____ L____, JR., the evidence of record shows he used different names during his periods of service in the Army.  This is further evidenced in his application to the Board wherein he entered variations of both names and the SN used during his first enlistment.  He also provided a birth certificate reproduction that shows the same SSN used during his period of service ending 3 August 1961.

8.  His DD Forms 214 were prepared in accordance with the governing regulation in effect at the time of his service.  It appears the applicant does not have a copy of his DD Form 214 for the period ending 19 October 1956; therefore, a copy will be provided to him.

9.  The evidence shows he was properly and equitably discharged on both occasions in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process for both periods of service.

10.  He was court-martialed and he received nonjudicial punishment on multiple occasions during his first enlistment.  He was court-martialed and he had lengthy periods of being AWOL during his second enlistment.  Due to his record of indiscipline, his service was unsatisfactory for both periods.  There is no evidence of circumstances that would have warranted an upgrade of his discharge to honorable or general under honorable conditions.  In view of the foregoing evidence, there is no basis upon which to grant the requested relief.

11.  For historical purposes, the Army has an interest in maintaining the accuracy 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 a change to those records.



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)                                         AR20140008925



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ABCMR Record of Proceedings (cont)                                         AR20140008925



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