ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170018550 APPLICANT REQUESTS: The applicant requests: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect: * the correct spelling of his name * his date of birth as October vice October * an upgrade of his honorable discharge to a "full" honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s New York State Driver License 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 has been out of the Army for 37 years and his discharge should be upgraded by now to full honorable. He does not provide specifics on what part of his name is misspelled; however, he provides a copy of his state driver's license with the name spelled the same as shown on his DD Form 214. 3. On 21 June 1977, with parental consent and at the age of 17 years old, the applicant enlisted in Regular Army for a term of 3 years. After completing initial entry training, he was assigned to his first and only permanent duty assignment in Germany. 4. Regarding correction of his date of birth and his name, his record contains the following forms listing his DOB as "October and his name as shown on his as X_ _ and he endorsed these forms with his signature: * DD Form 1966 (Application of Enlistment – Armed Forces of the United States): Part VI (Parental/Guardian Consent for Enlistment) signed by his parents and the spelling of the parents’ last names are consistent with the spelling of the applicant’s last name on this form * DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States) * DA Form 428 (Application for Identification Card) * DA Form 41 (Record of Emergency Data) 5. Regarding his request to upgrade his discharge to fully honorable, the record shows: a. On 5 July 1979, the applicant accepted nonjudicial punishment (NJP) for disobeying a noncommissioned officer, being derelict in the performance of his duties by sleeping on duty, and disobeying a commissioned officer. b. On 10 July 1979, he was referred to the Community Drug and Alcohol Assistance Center (CDAAC) for testing positive for morphine and coded for improper use of hashish. His active rehabilitation program began on 28 July 1979 and ended on 23 September 1979. On 26 October 1979, the commander declared the applicant as a rehabilitative failure. c. The applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 9, Alcohol or Other Drug Abuse (Exemption Policy), drug rehabilitation failure. The appropriate commander approved the separation and directed he be issued an Honorable Discharge Certificate. d. The applicant acknowledged he had been notified of the pending separation action against him and elected not to submit a statement in his own behalf. e. On 3 January 1980, he was discharged accordingly. His DD Form 214 shows his character of service as “Honorable” and he completed 2 years, 6 months, and 13 days of net active service. 6. AR 635-5 (Separation Documents), in effect at the time, stated for item 1, enter name in all capital letters; include "JR," "SR," "II" when needed and for item 5, enter date using six-digit number in this item; year, month, and day written in that sequence without spaces or slashes, e.g., 420106 for 6 Jan 42. 7. AR 635-200 (Personnel Separations- Enlisted Personnel), Chapter 9, Alcohol or Other Drug Abuse (Exemption Policy) provided the authority and outlined the procedures for discharging enlisted personnel based on alcohol or other drug(s) abuse (i.e., the illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug(s)). An honorable discharge was appropriate for chapter 9. 8. AR 600-85, columns A, B, and C stated the member will not be subject to disciplinary action under the UCMJ, or to administrative separation with less than an honorable discharge under certain circumstances. 9. In regards to his DD Form 214 showing incorrect name and DOB, the applicant was not specific with what part of his name is misspelled; however, the name and DOB on listed on his driver's license is spelled the same as the name listed on his DD Form 214 and other documents in his records. 10. In regards to upgrading his characterization of service, the applicant states he has been out of the Army for 37 years and his discharge should be upgraded to honorable by now. His DD Form 214 shows his characterization of service as honorable. He completed 30 months of his 36 months contractual obligation. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity and no supporting evidence of mitigating circumstances for the misconduct. The Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. Additionally, the Board found no error regarding the spelling of the applicant’s name or his date of birth in his military records; both he and his parents attested to the spelling of his name and his birthdate on the DD Form 4 Enlistment Contract, which is the same as reflected on the applicant’s DD Form 214. The Board agreed regulatory guidance provides for the maintaining of military records as they were during the member’s period of service. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. The regulation directs that the purpose of the separation document is to provide the individual with documentary evidence of his or her military service. It is important that information entered on the form should be complete and accurate. It stated for item 1, enter name in all capital letters; include "JR," "SR," "II" when needed and for item 5, enter date using six-digit number in this item; year, month, and day written in that sequence without spaces or slashes, e.g., 420106 for 6 Jan 42. 3. AR 635-200 (Personnel Separations- Enlisted Personnel), in effect at the time, provided the authority for separation of enlisted personnel. Chapter 9, Alcohol or Other Drug Abuse (Exemption Policy), provided the authority and outlined the procedures for discharging enlisted personnel without right to board action based on alcohol or other drug(s) abuse (i.e., the illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug(s) when: a. The member is entitled to exemption under the policy as expressed in columns B and C, table 3-1, AR 600-85, Alcohol and Drug Abuse Prevention and Control Program (ADAPCP); and b. The member has been determined to be an alcohol or other drug rehabilitation failure in accordance with AR 600-85. 4. AR 600-85, in effect at the time, prescribed policies and procedures for implementing, operating, and evaluating the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). Columns A, B, and C stated the member will not be subject to disciplinary action under the UCMJ, or to administrative separation with less than an honorable discharge, based in whole or in part on alcohol abuse, or drug use or drug possession incidental to personal use, which occurred prior to the effective time of exemption or which is revealed to a physician or ADAPCP counselor at a scheduled interview or evaluation or by a positive urinalysis administered during active or follow-up rehabilitation if a member is identified as an abuser of alcohol or other drugs by the method indicated below–– * Member voluntarily seeks help for an alcohol or other drug problem * Member receiving emergency medical treatment for an actual or possible alcohol or other drug overdose * Urine test administered to identify drug abusers for entry into the ADAPCP * Medical referral to the ADAPCP by a physician who has diagnosed alcohol or other drug abuse incident to a sick call or other routine medical examination * Commander referral to the ADAPCP based on deteriorating job performance, conduct, or other behavior in a manner frequently associated with alcohol or other drug abuse, or based on apprehension by other than civilian or military law enforcement officials; or based on discovery of use or possession of drugs or drug paraphernalia during a routine inspection. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170018550 2 1