PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 August 2003
         DOCKET NUMBER: AR2003086965


         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. William D. Powers		Member
Mr. Frank C. Jones		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.

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2. The applicant requests that his bad conduct discharge (BCD) be upgraded to at least a general discharge, that the date of birth (DOB) on both of his reports of separation (DD Form 214) be corrected to reflect a DOB of 14 December 1948 and that the last digit of his social security account number (SSAN) on both of his DD Form 214s be changed from a "0" to a "6."

3. The applicant states that he served his country honorably during two tours in Vietnam in which he was wounded and was awarded the Purple Heart. He further states that he had just returned from his second tour in Vietnam when a colonel's son rushed him and he unloaded on him. He goes on to state that he was afraid that he would be punished for hitting an officer's kid and instead of reporting the incident, he went absent without leave (AWOL). He continues by stating that he was scared and stupid at the time and he had a lot going through his head; however, after realizing his mistake he turned himself in. In support of his application he submits a copy of his birth certificate.

4. The applicant’s military records, although somewhat incomplete, show that he enlisted in Raleigh, North Carolina, with parental consent on 6 January 1966. At the time of his enlistment his DOB was listed as 14 December 1948. He successfully completed his training and was transferred to Fort Benning, Georgia.

5. He was transferred to Vietnam on 30 August 1967 and was assigned to Company C, 2^nd Battalion, 12^th Infantry Regiment for duty as a light weapons infantryman. He was wounded on 12 November 1967 when he received fragmentation wounds to the right hand and was awarded the Purple Heart. He was promoted to the pay grade of E-5 on 1 December 1967.

6. He was again wounded on 4 April and 8 May 1968 and was awarded Purple Hearts for both of those wounds as well. He was medically evacuated from Vietnam and was subsequently reassigned to Fort Benning.

7. On 15 October 1968, he was honorably discharged for the purpose of immediate reenlistment. He had served 2 years, 9 months and 10 days of total active service. At the time of his discharge, his DD Form 214 indicated that the last digit of his SSAN was "0" and his DOB was 14 December 1946.

8. On 16 October 1968, he reenlisted for a period of 6 years and a variable reenlistment bonus.

9. Although the records are incomplete and do not show when he served in Vietnam during his second tour or when he was reduced in rank, the available records show that on 11 February 1970, while serving in the rank of corporal in Vietnam, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay and extra duty.

10. He was awarded the Bronze Star Medal for meritorious service in Vietnam during the period of January 1970 to January 1971 and apparently was again promoted to the pay grade of E-5.

11. On 28 December 1971, while serving in the pay grade of E-5 at Fort Benning, NJP was imposed against him for failure to obey a lawful order which resulted in his losing control of a vehicle and causing a vehicle accident. His punishment consisted of a forfeiture of pay and extra duty.

12. On 11 January 1972, NJP was imposed against him for two specifications of failure to go to his place of duty. His punishment consisted of a forfeiture of pay and extra duty.

13. On 18 January 1972, he went AWOL and remained absent until he was returned to military control on 4 March 1972 and charges were preferred against him. He was convicted by a special court-martial of the AWOL charges on 11 April 1972. He was sentenced to confinement at hard labor for 40 days and reduction to the pay grade of E-1.

14. He again went AWOL on 2 August 1972 and remained absent until 23 June 1973, when he was returned to military control and charges were preferred against him for the AWOL offense. He was convicted by a special court-martial on 10 September 1973 and was sentenced to a BCD, confinement at hard labor for 100 days, reduction to the pay grade of E-1 and a forfeiture of pay. He was transferred to the Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his confinement.

15. While at Fort Leavenworth, the applicant informed a social worker that he had gone AWOL because of family debts and that he did not want to be restored to duty.

16. The findings and sentence of his court-martial conviction were affirmed while the applicant was on excess leave pending appellate review.

17. Accordingly, he was discharged under honorable conditions on 18 July 1974, pursuant to a duly reviewed and affirmed court-martial conviction. He had served 7 years, 2 months and 14 days of total active service and had 479 days of lost time due to AWOL and confinement. At the time of his discharge the DD Form 214 issued to the applicant indicates that the last digit of his SSAN is "0" and his DOB was reflected as 14 December 1946.

18. A review of the available records fails to show that the applicant's SSAN ends with the number "6".

19. Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

CONCLUSIONS:

1. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3. The applicant’s contentions regarding his discharge upgrade have been noted by the Board. However, they are not supported by the evidence of record and as such are not sufficiently mitigating to warrant relief when compared to the length of his absence and his overall disciplinary record.

4. The Board has also noted his contention that his SSAN is incorrect and that the last digit should be a "6." However, there is no evidence in the available records nor has the applicant provided any proof that such is the case. Accordingly, lacking proof from the Social Security Administration documenting his correct SSAN, there is no basis to change it.

5. The applicant's contention that his DOB is incorrectly reflected on both of his DD Form 214s is correct. The evidence of record clearly shows that his DOB is 14 December 1948. However, an administrative oversight resulted in the year of birth being incorrectly reflected as 46 instead of 48. Therefore, it would be in the interest of justice to correct it at this time.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.





RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing on the DD Forms 214 dated 15 October 1968 and 18 July 1974, pertaining to the individual concerned, that his DOB is 14 December 1948 instead of 14 December 1946, as is currently reflected.

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

BOARD VOTE:

___fcj __ ___wdp _ __tsk ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Ted S. Kanamine____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003086965
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/08/12
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1974/07/18
DISCHARGE AUTHORITY	AR635-200 SPCM
DISCHARGE REASON	SPCM
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 675	144.6800/A68.00
2.
3.
4.
5.
6.