PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 23 April 2002
         DOCKET NUMBER: AR2002066981


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Mark D. Manning		Member
Mr. Thomas Lanyi		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

---

2. The applicant requests that his undesirable discharge be upgraded to an honorable discharge and that item 9a (Type of Separation) on his DD Form 214 (Report of Separation from Active Duty) be changed to show "honorable."
He also requests that the sixth and seventh digits of his social security number (SSN) be changed from "17" to "71" in item 3 (Social Security Number) on his DD Form 214.

3. The applicant states that his discharge is unjust and needs to be changed to honorable or upgraded to a better discharge. In support of his application, he submits a copy of his DD Form 214 and Social Security Card.

4. The applicant’s military records show that he enlisted in the Regular Army on 11 December 1970 for a period of 3 years. He successfully completed basic and advanced individual training (AIT) at Fort Jackson, South Carolina, and was assigned to Germany as a field wireman. He was advanced to private first class in February 1972.

5. On 15 September 1971, the applicant was convicted by a special court-martial of being AWOL from 6 April 1971 to 8 July 1971 and from 21 July 1971 to 19 August 1971. He was sentenced to perform hard labor without confinement for 30 days, forfeiture of $25.00 pay per month for 4 months and reduction to private E-1.

6. On 23 November 1971, the applicant received nonjudicial punishment for being AWOL from 8 November 1971 to 22 November 1971.

7. The applicant received nonjudicial punishment again on 3 January 1972 for being AWOL from 20 December 1971 to 2 January 1972.

8. The applicant received nonjudicial punishment a third time on 5 April 1972 for sleeping on his post at the Battalion Ammo Dump.

9. Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 5 July 1972 to 15 July 1972.

10. The applicant's personnel records contain a Military Police Report, dated 5 July 1972, which indicates he was arrested on 16 July 1972 by civil authorities in Geneva County, Alabama.

11. Orders published by the U.S. Army Infantry Center at Fort Benning, Georgia, indicate the applicant was dropped from the rolls of Battery C, 3rd Battalion of the 76th Field Artillery in Germany on 7 August 1972. These orders also indicate that the applicant was confined at the State Mental Hospital in Mount Vernon, Alabama.

12. The applicant's personnel records contain an undated Fact Sheet which states he was sentenced to 30 years for second degree murder on 2 October 1972 and confined at Atmore Prison located in Atmore, Alabama. This document also states that the applicant had won a re-trial on charges and was confined in maximum security at Geneva County Jail in Geneva, Alabama.

13. In the Remarks (item 42) section of the applicant's DA Form 20, it is cited that he was "Convicted of 1st Degree Manslaughter by Geneva County Court on 26 June 1974 and sentenced to three (3) yrs conf."

14. The facts and circumstances pertaining to the applicant’s discharge proceedings are not present in his records. However, his DD Form 214 indicates that he was discharged with an undesirable discharge on 26 August 1974 under the provisions of Army Regulation 635-206, Section VI, for misconduct – conviction by a civil court or adjudged a juvenile. He had 1 year, 1 month and
29 days of creditable service with 932 days of lost time due to AWOL and civil confinement. Item 9a (Type of Separation) of the applicant's DD Form 214 shows the entry "Discharge."

15. The applicant applied to the Army Discharge Review Board (ADRB) on 22 November 1977 for an upgrade of his discharge. The ADRB determined that the applicant's discharge was proper and equitable and unanimously voted to deny his request.

16. Item 3 on the applicant's DD Form 214 shows the entries, "17" as the sixth and seventh digits of his SSN.

17. The applicant provided a copy of his Social Security Card which shows the sixth and seventh digits of his SSN as "71." Several documents in his service personnel records show the sixth and seventh digits of his SSN as "71."

18. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel. Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate.

19. Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214. This regulation, in effect at the time, directs that the service member’s social security number will be entered in item 3 (Social Security Number) of the DD Form 214.



20. Army Regulation 635-5, in effect at the time, states that the type of separation will be entered in item 9a of the DD Form 214. This regulation directs that the applicable terms entered in item 9a for enlisted personnel are: (1) "Relief from active duty (AD)"; (2) "Discharge"; (3) "Retirement"; (4) "Separation to continue on active duty in another status"; (5) "Relief from ADT"; or (6) "Release from military control."

CONCLUSIONS:

1. The Board notes that the discharge processing papers are not in the applicant’s records. However, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time .

2. The Board considered the applicant's contention that his discharge was unjust. However, he has failed to show through the evidence submitted with his application or the evidence of record, that the actions taken in this case were in error on unjust.

3. In view of the applicant's numerous acts of indiscipline, it does not appear that his undesirable discharge was too severe. Therefore, the type of discharge directed and the reasons for his separation were appropriate considering all the facts of the case and there is no basis for upgrading his discharge.

4. The Board noted the applicant's request for correction of item 9a (Type of Separation) on his DD Form 214 to show "honorable." However, the governing regulation requires the entry of the type of separation and does not allow for the characterization of service (honorable, under honorable conditions, or under other than honorable conditions) to be entered in item 9a. As a result, this entry is correct as currently constituted and will not be changed.

5. The applicant's DD Form 214 incorrectly shows the sixth and seventh digits of his SSN as "17" instead of "71." His Social Security Card shows the sixth and seventh digits of his SSN as "71." It is apparent that an administrative error has occurred in this case regarding the applicant's SSN; therefore, it would be appropriate to amend item 3 on his DD Form 214 to show the sixth and seventh digits of his SSN as "71."

6. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.





RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected:

         a. by deleting the sixth and seventh digit entries, "17" in item 3 (Social Security Number) on the DD Form 214 of the individual concerned; and

         b. by adding the sixth and seventh digit entries, "71" in item 3.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

KAK_____ MDM____ TL_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Karol A. Kennedy______
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002066981
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020423
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19740826
DISCHARGE AUTHORITY	AR635-206. .
DISCHARGE REASON	Misconduct-Conviction by Civil Court or Adjudged a Juvenile Offender
BOARD DECISION	GRANT IN PART
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	100.0900
2.	144.0000
3.
4.
5.
6.