ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  3 October 2019

	DOCKET NUMBER:  AR20170009922


APPLICANT REQUESTS: 

* His records be corrected to show his correct year of birth
* an upgrade to his under honorable conditions discharge
* Basic Airborne training added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States)
* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he was 16 years old when he served his country.  He changed his year of birth from 1952 to 1951 in order to serve; however, he would like to have his records updated to reflect his correct year of birth.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 14 January 1969.  His DD Form 4 (Enlistment Contract Armed Forces of the United States) Block 21 shows his date of birth (DOB) as            
XX X___ 19xx.

	b.  According to his DA Form 20B (Insert Sheet to DA Form 20 Record of Court-Martial Convictions) on 23 January 1970, he was convicted by Summary Court-Martial 4 for disrespect to his superior commissioned officer on or about 23 January 1970.

	c.  On 4 February 1970, he was notified by his immediate commander of his intent to initiate separation under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), because of his habits and traits of character show repeated offense of disobeying orders and misconduct.

	d.  Having been advised by counsel, the applicant acknowledged the basis for contemplated action to separate him for unsuitability AR 635-212.  He waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He elected to submit a statement in his own behalf and waived representation by counsel.  He acknowledged that:

* he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him
* he understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement on his behalf

	e.  Consistent with the chain of command recommendations the separation authority approved the discharge on 20 February 1970, under the provisions of AR 635-212 with the issuance of a General Discharge Certificate.

	f.  The applicant was discharged on 27 February 1970.  His DD Form 214 shows he completed 1 year, 1 month and 14 days of net active service this period.  He was awarded or authorized the National Defense Service Medal and Parachute Badge.  His 
DD Form 214 shows:  

* block 9 (date of birth) XX X____ 19xx
* block 25 (education and training) Basic Airborne

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that Board's 15-year statute of limitations. 

5.  By regulation, action will be taken to separate an individual for unsuitability when it is clearly established that it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory soldier, and he meets retention medical standards.

6.  The Board should consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted.  Based upon the short term of honorable service completed prior to a pattern of misconduct which led to the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

Additionally, the Board found that the applicant’s Basic Airborne training was already reflected on the DD Form 214.  The Board noted that the spelling of the course was incorrectly shown; however, it was an administrative error that, in the opinion of the Board, did not merit a publication of a separate or new DD Form 214.
Finally, based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded that the applicant failed to provide sufficient and proper documentation to show error in regards to his DOB. Therefore, the Board found insufficient evidence of an error or injustice which would warrant making a change to the applicant’s record. 
BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
 				 
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.

REFERENCES:
1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the policy for administrative separations for unfitness.  

	a.  Paragraph 3 (Policy) states action will be taken to separate an individual for unsuitability when it is clearly established that it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory soldier, and he meets retention medical standards.

	b.  Paragraph 4b (Types of Separation) states an individual separated by reason of  unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record.

3.  AR 635-200 (Personnel Separations - Enlisted Separations), currently in effect, sets forth the basic policy for separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states that an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration of the member’s age, length of service, grade, and general aptitude.  

	b.  Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record.  

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.

ABCMR Record of Proceedings (cont)	 AR20170009922


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