IN THE CASE OF:	  

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150002744 


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, in effect, correction of his date of discharge and removal of the following derogatory information from his official military personnel file (OMPF):

* special court-martial conviction
* five nonjudicial punishments (NJP) administered under the provisions of Article 15, Uniform Code of Military Justice (UMCJ)

2.  The applicant states the above documents do not pertain to him because his date of birth (DOB) is 14 February 19XX.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty) for the period ending on 19 November 1974 and a certificate of birth showing his DOB as 18 February 19XX which was issued on 2 April 2014. 

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 records show he was born on 14 February 19XX and he was inducted into the Army of the United States on 5 December 1972.  He was honorably released from active duty on 19 November 1974.  

3.  His DD Form 214 for this period shows in: 

	a.  Item 3 (Social Security Number (SSN)) XXX-XX-X360.

	b.  Item 4 (DOB) 14 February 19XX.

	c.  Item 18a he completed 1 year, 11 months, and 15 days of creditable active service.  

   d.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists the following:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar

4.  His records contain a DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States) which indicates he entered the Regular Army on 15 April 1976.

a. Item 2 (SSN) shows XXX-XX-X360 (the same SSN that appears on his 
DD Form 214 for the period ending 19 November 1974).

	b.  Item 4 (DOB) lists 14 February 19XX.

5.  Permanent Orders Number 99-1, dated 24 August 1977, issued by Headquarters, 24th Infantry Division, Fort Stewart, GA awarded the applicant an Army Good Conduct Medal (1st Award) for the period 2 December 1972 to 19 November 1974.

6.  His records show he accepted NJP on five occasions between September 1977 and April 1979.  In each case, his SSN is listed as XXX-XX-X360 (the same SN that appears on his DD Form 214 for the period ending 19 November 1974). None of the NJPs show his DOB.  The NJPs were issued:                    

	a.  On 15 September 1977, for failing to go to his appointed place of duty at the time prescribed.  His punishment consisted of a reduction in rank from specialist four (SP4) to private first class and a forfeiture of pay (both suspended for 90 days).  These suspensions were vacated, however the date the vacation was executed is not readable.  

	b.  On 11 July 1978, for failing to obey an order from a noncommissioned officer (NCO) and one specification of using disrespectful language toward an NCO.  His punishment was a forfeiture of pay, suspended for 6 months (there is no indication this suspended punishment was later vacated).  

	c.  On 22 November 1978, for using disrespectful language toward a commissioned officer and one specification of failing to obey an order from a commissioned officer.  He was reduced in rank/grade to private/E-1, a forfeiture of pay, and 30 days of confinement in the Correctional Custody Facility.  

	d.  On 2 March 1979, for wrongfully using provoking words and gestures toward a specialist five who was on duty as 1st Cook.  His punishment included a forfeiture of pay, restriction, and extra duty (all suspended for 60 days; there is no evidence that the suspended punishment was later vacated).

	e.  On 6 April 1979, for willfully disobeying a lawful order given by an NCO.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

7.  Special Court-Martial (SPCM) Order Number 2, dated 22 January 1979, issued by Headquarters, U.S. Military Community Activity, Neu Ulm, shows the applicant was charged with one specification of breaching correctional custody and one specification of willfully disobeying the lawful order of a commissioned officer.  

	a.  He pled guilty to the first specification and not guilty to the second.  He was found guilty of only the first specification.  

	b.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of pay.  

   c.  The convening authority approved the sentence on 22 January 1979 and directed the applicant be given only 45 days of confinement at hard labor and a forfeiture of pay for 45 days, with the remainder of the sentence suspended for 6 months.

	d.  His SSN, as listed on this order, is the same SSN that appears on his DD Form 214 for the period ending 19 November 1974.  The order does not show his DOB.

8.  SPCM Order Number 106, dated 16 February 1979, issued by Headquarters, 3rd Battalion, U.S. Army Retraining Brigade, states the unexecuted portion of the applicant's sentence to hard labor for 3 months (with the excess of 45 days suspended for 6 months on 22 January 1979) was suspended until 21 June 1979.  The SSN listed on this order is the same SSN that appears on his 
DD Form 214 for the period ending 19 November 1974.  The order does not show his DOB.

9.  The applicant's records do not contain his discharge packet, but, on an unknown date, his commander initiated separation action under the provisions of Section V (Other Acts or Patterns of Misconduct), paragraph 14-33b(1) (Patterns of Misconduct - Frequent Incidents of a Discreditable Nature with Civil or Military Authorities), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  His record contains a DD Form 214 which shows this authority and reason for discharge.

10.  On 17 April 1979, the applicant was discharged under other than honorable conditions.  His DD Form 214 shows the authority as paragraph 14-33b(1), Army Regulation 635-200.  It also shows he completed 2 years, 11 months, and 4 days of net active creditable service this period with 1 year, 11 months, and 15 days of prior active service (which matches the net active creditable service shown on his DD Form 214 for the period ending 19 November 1974), and 1 year, 4 months, and 26 days of prior inactive service.  He also had 29 days of lost time.  His 
DD Form 214 shows in:

	a.  Item 3, XXX-XX-X360 (the same SSN listed on his DD Form 214 for the period ending 19 November 1974).

   b.  Item 4, his DOB as 14 February 19XX (the same date shown on his DD Form 214 for the period ending 19 November 1974).

	c.  Item 26 the following:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar
* Army Good Conduct Medal (1st Award)

11.  Army Regulation 600-37 (Unfavorable Information), in effect at the time, prescribes policies and procedures for the resolution of unfavorable information, and to ensure unsupported or unresolved unfavorable information, which may prejudice the individual's reputation or future in the military service, is not filed in the individual's OMPF.

	a.  Paragraph 1-3 states the objectives are to apply fair and just standards to all military personnel, and to protect the rights of individual Soldiers while at the same time protecting the right of the Army to consider all available information when selecting individuals for positions of leadership, trust, and responsibility.  Additionally, this regulation provides safeguards from adverse personnel actions based on unsubstantiated allegations or mistaken identity (emphasis added), to provide a means for correcting injustices, and to ensure individuals of questionable moral character are not continued in the service or elevated to positions of leadership and responsibility.

	b.  Chapter 5 (Appeals) provides procedures for revising, amending, or eliminating unfavorable information from a Soldier's OMPF.  Once an official document containing adverse information is accepted by Headquarters, Department of the Army for inclusion in the OMPF, the individual has the burden of proof to show the document or documents are either unjust or untrue.  Substantive evidence must be submitted to support a claim and an appeal that merely alleges an injustice or error is not acceptable and will not be considered (emphasis added).  

12. Army Regulation 640-10, in effect at the time, set forth the basic authority for the filing of unfavorable information in the OMPF. 

	a.  Appendix A of that regulation provided, in pertinent part, that NJP are to be permanently filed in the OMPF.

	b.  Also Appendix A provides for court-martial orders to be filed permanently in the OMPF.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, removal of five NJPs and an SPCM from his OMPF.  He asserts these documents do not pertain to him because his DOB is incorrect.  He provides a DD Form 214 for a period ending on 19 November 1974 and a birth certificate.

2.  The five NJPs, SPCM, both DD Forms 214, and all other documents in his OPMF list the SSN he enlisted under and served under.  Additionally, his DOB is entered consistently in his record, though the record DOB differs from that shown on his birth certificate. 

3.  By regulation, the applicant has the burden of proof to show the documents he contends are not his are either unjust or untrue.  Substantive evidence must be submitted to support a claim.  An appeal that merely alleges an injustice or error is not sufficient to provide a basis for favorable consideration of his request. The applicant has provided no evidence which clearly and compellingly shows the SPCM and five NJPs are not his and they should not be filed in his OMPF.  

4.  The preponderance of the evidence supports no documents being withdrawn from his OMPF at this time.  Should he be able to provide clear and compelling proof, such as verifying documentation showing his identity was illegitimately used, within 1 year of the date of the Board's decision, his application can be reconsidered.

5.  As to the correction of his date of discharge, both DD Forms 214 (for the periods ending on 19 November 1974 and 15 April 1979, respectively) appear, based on all available evidence, to be administratively and factually correct.  As such, there is insufficient evidence upon which to base the requested relief.

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 that 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)                                         AR20150002744



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ABCMR Record of Proceedings (cont)                                         AR20150002744



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