BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150017894 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____X____ ___X_____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150017894 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 issuing a DD Form 215 (Correction to DD Form 214) deleting the current entry from item 1 of his 14 July 1976 DD Form 214 and adding his correct name (i.e., as it appears on his Registration of Birth). 2. The Board further determined 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 upgrade of the character of service of any of his administrative discharges. ______________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. BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150017894 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, upgrade of his two under other than honorable conditions (UOTHC) discharges to general, under honorable conditions and a change to the narrative reason for his first discharge. He also requests correction of the name recorded on his second DD Form 214 (Report of Separation from Active Duty) to show the correct spelling of his last name. He requests personal appearance before the Board. 2. The applicant states, in effect, he initially enlisted in the U.S. Army with a guarantee to attend training for military occupational specialty (MOS) 26V (Tactical Microwave Systems Operations and Maintenance). However, the Army reneged on its promise and he was not provided the opportunity to attend the training. This caused him mental health issues, which led to his UOTHC discharge. He also states his last name is "D__LS_;" however, his DD Form 214 issued for his second period of active duty service shows his last name as "D__LDS_." He adds, upgrade of the characterization of his service for his first two periods of service will help him in his effort to apply for government benefits, including healthcare. 3. The applicant provides no additional documentary evidence in support of his application. 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. A City of Trenton, Division of Health, Trenton, NJ, Registration of Birth, shows the applicant was born in December 1952 and given the name "M___ C___ D__LS_." 3. U.S. Army Recruiting Main Station, Newark, NJ, letter, dated 27 April 1970, notified the applicant that his request to attend Tactical Microwave Systems Operations and Maintenance, Course Number 101-26A1O, commencing on 14 August 1970, was approved under the Army Service School Enlistment Option. It shows that, in order for him to complete the required processing and basic combat training (BCT) prior to the class reporting date for the course, the applicant was informed he must enlist on 28 May 1970 so that he could begin BCT on 8 June 1970. In the event that he did not enlist on that date, the authority for him to attend the course was cancelled. 4. On 29 April 1970, the applicant's parents consented to his enlistment in the U.S. Army for a period of 3 years. 5. A DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows the applicant enlisted in the Regular Army (RA) on 13 May 1970 for a period of 3. It also shows in item 5 (Last Name – First Name – Middle Name): "D__LS_, M___ C___." a. A review of the DD Form 4 fails to show an entry for an Army Service School Enlistment Option. b. The applicant and the officer who administered the oath of enlistment placed their signatures on the document on 13 May 1970. 6. Armed Forces Examining and Entrance Station, Newark, NJ, Special Orders Number 95, dated 13 May 1970, show the applicant enlisted in the RA on 13 May 1970 for a period of 3 years. The orders also show, "For The Individual: Enlisted For: 'RA/U' [Unassigned]." 7. The applicant's DA Form 20 (Enlisted Qualification Record), in pertinent part, shows in: * item 38 (Record of Assignments) – * 13 May 1970, U.S. Army Reception Station, U.S. Army Personnel Center, Fort Dix, NJ * 31 August 1970, BCT, Fort Dix, NJ * 8 September 1970, BCT, Fort Dix, NJ * 29 September 1970, Dropped From Rolls * item 42 (Remarks): "EM [Enlisted Member] claims he was qualified for Army Career Group 26V, but missed school date, so he enlisted for RA Unassigned." 8. On 6 July 1970, the applicant received nonjudicial punishment for absenting himself from his unit without authority from 4 July 1970 to 6 July 1970. 9. On 1 October 1971, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for absenting himself from his unit without authority from 26 September 1970 to 30 September 1971. 10. On 7 October 1971, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense(s) therein contained, which also authorized the imposition of an undesirable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration (VA) * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged with an Undesirable Discharge Certificate. d. He was also advised that he could submit statements in his own behalf and he elected to submit a statement in his own behalf. e. The applicant and his counsel placed their signatures on the document. f. The applicant's statement reads: "I do believe my departure from the Army will be of a great benefit on my behalf because I enlisted for the school Microwave Operations and Repair and did not receive orders for that school. But instead, I was sent orders [for] 11B [Infantryman], Fort Polk. Therefore, I was forced to go AWOL (Absent Without Leave), trying to miss shipment. The thing that makes it so bad is, I was only 17 years old. Trying to find myself and who I was. And then they had me sign some phony papers for RA, unassigned. When I was suppose[d] to go to a[n] assigned school. I still respect the Army, and I always will. But as it seems the Army is holding me back instead of making a man out of me." 11. The chain of command recommended approval of the applicant's request for discharge for the good of the service with an Undesirable Discharge Certificate. 12. A copy of the separation authority's approval document is absent from the applicant's military personnel records. 13. Headquarters, U.S. Army Training Center, Infantry, Fort Dix, NJ, letter, dated 1 November 1971, shows Major General Howard H. C____, Commanding General, notified the applicant that, "[h]aving been discharged from the U.S. Army on 1 November 1971 under the provision of (UP) Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Separation Program Number 246 (Discharge for the Good of the Service) with an undesirable discharge issued at Fort Dix, NJ, this Order of Ejection is issued and directed to you pursuant to lawful authority vested in the Commanding General of the installation. 14. Headquarters, U.S. Army Training Center, Fort Dix, NJ, Special Orders Number 305, undated, discharged the applicant from the RA with an Undesirable Discharge Certificate, effective 1 November 1971. 15. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant entered active duty this period on 13 May 1970 and he was discharged on 1 November 1971 UP AR 635-200, SPN 246, with an UOTHC character of service. He had completed 5 months and 24 days of net active service this period and he had 371 days of time lost. It also shows in item 1 (Last Name - First Name - Middle Name): "D__LS_, M___ C___." 16. A DD Form 4 shows the applicant enlisted in the U.S. Army Reserve (USAR), Delayed Entry Program (DEP), on 30 January 1975 for a period of 6 years. Item 5 shows the entry, "D__LS_, M___ C___." 17. Another DD Form 4 shows the applicant enlisted in the RA on 5 February 1975 for a period of 4 years. Item 5 shows the entry, "D__LS_, M___ C___." 18. On 25 June 1975, the applicant's company commander notified him that he was being considered for discharge UP AR 635-200, paragraph 5-38, for concealment of arrest record. The commander also informed him that he could be separated with either an honorable discharge or a general, under honorable conditions discharge. 19. On 3 November 1975, court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for absenting himself from his unit without authority from 30 June 1975 to 30 September 1975. 20. The applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the VA * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged UOTHC with an Undesirable Discharge Certificate. d. He was also advised that he could submit statements in his own behalf. He elected not to submit any statements in his own behalf. e. The applicant and his counsel placed their signatures on the document. 21. The applicant's DA Form 2-1 (Personnel Qualification Record), in pertinent part, shows in item 21 (Time Lost): * 30 June 1975 through 29 September 1970, 91 Days * 3 November 1975 through 2 June 1976, 211 Days 22. A complete copy of the applicant's separation packet is absent from his military personnel records. 23. A DD Form 214 shows the applicant entered active duty this period on 5 February 1975 and he was discharged on 14 July 1976 UP AR 635-200, Separation Program Designator "KFS" (In Lieu of Trial by Court-Martial), with an UOTHC character of service. He had completed 7 months and 10 days of net active service this period and he had 302 days of time lost. It also shows in item 1: "D__LDS_, M___ C___." 24. A DD Form 4 shows the applicant enlisted in the USAR, DEP, on 14 January 1983 for a period of 6 years. It also shows he further enlisted in the RA on 29 March 1983 for a period of 3 years. Item 5 shows the entry, "D__LS_, M___ C___." 25. On 30 January 1984, the applicant's company commander notified the applicant that he was initiating action to recommend the applicant be discharged UP AR 635-200, paragraph 7-17, based on fraudulent entry because he failed to fully disclose his arrest record and deliberately concealed information that would have disqualified him from enlistment in the U.S. Army. The applicant was advised of his rights and the separation procedures involved. The commander also informed him that he could be separated with either an honorable discharge or a general, under honorable conditions discharge. 26. Following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him. a. He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him. b. The applicant also acknowledged he understood that if he received a discharge/character of service that was less than honorable he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his discharge. However, an act of consideration by either board did not imply that his discharge would be upgraded. c. He indicated that he would submit statements in his own behalf; however, the separation packet does not contain any statement(s). d. The applicant and his counsel placed their signatures on the document. 27. The separation authority approved the recommendation for discharge of the applicant and directed that he be furnished a General Discharge Certificate. 28. The applicant's DD Form 214 shows he entered active duty this period on 29 March 1983 and he was discharged on 2 March 1984 under honorable conditions (general). He had completed 11 months and 2 days of net active duty service this period. It also shows in item 1: "D__LS_, M___ C___." 29. A review of the applicant's military personnel records failed to reveal any evidence that he applied to the ADRB for review of any of his discharges within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty in 1976, prescribed policies and procedures regarding separation documents. It also established standardized policy for preparing and distributing the DD Form 214. a. Chapter 2 contains guidance on the preparation of the DD Form 214. It shows that the source documents for entering information on the DD Form 214 will be the Enlisted Qualification Record, Officer Qualification Record, Personnel Qualification Record, Officer Record Brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File. b. Section II (Preparation of DD Form 214) contains item-by-item instructions for completing the DD Form 214. The instructions show for item 1, enter name in order shown using all capital letters, and including abbreviation for junior, senior, second, when appropriate. 2. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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 UOTHC is normally considered appropriate. b. Chapter 3, 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. Chapter 3, 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. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant contends that he should be granted a personal appearance before the Board to present evidence that his two UOTHC discharges should be upgraded to general, under honorable conditions discharges and the narrative reason for his first discharge should be changed based on an unfilled enlistment commitment. He also contends that the last name recorded on his second DD Form 214 should be corrected. 2. The request for a personal appearance hearing was considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is considered sufficient to render a fair and equitable decision at this time. 3. The evidence of record shows that upon enlistment in the U.S. Army on all three occasions, the applicant's name was correctly recorded in his military service records as "M___ C___ D__LS_." a. Based on the evidence of record, it appears an administrative error occurred during the period of the applicant's second enlistment and during his separation processing for that period of service that resulted in the incorrect spelling of his last name when he was discharged on 14 July 1976. b. item 1 of the applicant's 14 July 1976 DD Form 214 should be corrected in accordance with the instructions provided in the governing Army regulation. 4. The evidence of record shows that during the applicant's initial processing for enlistment in the RA, his request for an Army Service School Enlistment Option was approved for him to attend the Tactical Microwave Systems Operations and Maintenance, Course Number 101-26A1O, commencing on 14 August 1970. a. The approval was based upon, in pertinent part, the applicant's enlistment in the RA on 28 May 1970 in order for him to complete BCT and then attend the training. It is noted that he was advised, in the event that he did not enlist on that date, the authority for him to attend the course was cancelled. b. For reasons that are not clear, he enlisted in the RA (unassigned) on 13 May 1970. It is noted in the applicant's statement that he submitted at the time of his separation processing, he acknowledged he signed documents waiving/cancelling his Army Service School Enlistment Option. c. The evidence of record shows he was assigned to Fort Dix, NJ, for BCT. He was AWOL from 4 July to 6 July 1970. The evidence of record appears to show that he was recycled in BCT on 31 August 1970. d. The reporting date for the Tactical Microwave Systems Operations and Maintenance course was 14 August 1970. e. The evidence of record does not support the applicant's contention that the U.S. Army failed to fulfill the applicant's Army Service School Enlistment Option. 5. The applicant enlisted in the RA on 13 May 1970 and he went AWOL from 26 September 1970 to 30 September 1971. Charges were preferred against him and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. On 1 November 1971, he was discharged with an Undesirable Discharge Certificate with an UOTHC character of service. a. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed are presumed to have been appropriate. b. The applicant had more than 1 year of time lost and he completed less than 6 months of his 3-year active duty service obligation. c. His service during this period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel to merit either an honorable discharge or a general, under honorable conditions discharge. 6. The applicant enlisted in the RA on 5 February 1975 for a period of 4 years. a. The evidence of record shows the applicant's company commander became aware of information that resulted in him to notifying the applicant that he was being considered for discharge UP AR 635-200, paragraph 5-38, for concealment of arrest record. b. Shortly thereafter the applicant was notified of the separation action, he went AWOL (from 30 June 1975 to 30 September 1975). Charges were preferred against him and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. On 14 July 1976, he was discharged with an UOTHC character of service. c. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed are presumed to have been appropriate. d. The applicant had more than 10 months of time lost and he completed less than 8 months of his 4-year active duty service obligation. e. His service during this period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel to merit either an honorable discharge or a general, under honorable conditions discharge. 7. The applicant enlisted in the RA on 29 March 1983 for a period of 3 years. a. The applicant's administrative discharge UP AR 635-200, paragraph 7-17, based on fraudulent entry was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the reason for and type of discharge directed were appropriate and equitable. b. The applicant enlisted under fraudulent conditions by failing to fully disclose his arrest record and deliberately concealing information that would have disqualified him from enlistment in the U.S. Army. c. His service during this period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel to merit an honorable discharge. 8. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for government benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017894 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017894 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2