RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 September 2006
      DOCKET NUMBER:  AR20060001695


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Ms. Alice Muellerweiss            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to
honorable.

2.  The applicant states that it is a case of mistaken identity.  He
contends that his military records show three different Social Security
Numbers (SSN), none of which belong to him.  He states that his SSN is 2__-
__-____.

3.  The applicant provides a letter, dated 2 February 2006, from a Member
of Congress with enclosures; a DD Form 293 (Application for the Review of
Discharge or Dismissal from the Armed Forces of the United States); and a
DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on
9 September 1971.  The application submitted in this case is dated 3
January 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 12 August 1968 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 12A (pioneer).

4.  On 10 November 1969, contrary to his plea, the applicant was convicted
by a special court-martial of possessing marijuana.  He was sentenced to be
reduced to E-1, to forfeit $55 per month for 3 months, and to perform hard
labor without confinement for a period of 45 days.  On 21 January 1970, the
convening authority approved the sentence.

5.  On 5 March 1970, nonjudicial punishment was imposed against the
applicant for damaging military property and unlawful entry.  His
punishment consisted of restriction and extra duty.
6.  On 21 September 1970, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 6 September 1970 to
19 September 1970.  His punishment consisted of a reduction to E-2 and a
forfeiture of pay.

7.  The applicant arrived in Vietnam on 28 September 1970.

8.  While in Vietnam, on 19 July 1971, charges were preferred against the
applicant for violating two lawful general regulations and for possessing
heroin.  Trial by special court-martial was recommended.

9.  The applicant’s voluntary request for discharge under the provisions of
Army Regulation 635-220, chapter 10, for the good of the service is not
available.

10.  The separation authority’s action is not available.

11.  The applicant was transferred to the United States on 8 September
1971.

12.  The applicant’s DD Form 214 shows that he was discharged with an
undesirable discharge on 9 September 1971 under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service.  He had served
a total of 2 years, 11 months, and 22 days of creditable active service.
Item 32 (Signature of Member Being Transferred or Discharged) on his DD
Form 214 shows a legible signature and appears to be the same signature as
shown on the applicant’s application.

13.  The applicant’s service personnel records show three SSNs (28_-__-
____, 33_-__-____, and 38_-__-____).  His enlistment contract, signed by
the applicant with a signature that appears to be the same signature as
shown on his application, shows his SSN as 28_-__-____.

14.  The applicant provided a letter, dated 2 February 2006, from a Member
of Congress which states that officials at the Social Security
Administration confirmed that the applicant’s SSN is 2__-__-___.  This
letter also states that SSN 33_-__-___ is an invalid SSN and that SSN 38_-
__-___ was issued in 1989 to another individual, not the applicant.

15.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that
a member who has committed an offense or offenses for which the authorized
punishment includes a punitive discharge may at any time after the charges
have been preferred, submit a request for discharge for the good of the
service in lieu of trial by court-martial.  At the time, an undesirable
discharge was normally considered appropriate.

17.  Army Regulation 635-200, 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

18.  Army Regulation 635-200, 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.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that his case is a case of mistaken
identity, and there are three incorrect SSNs reflected throughout his
military service records, evidence of record shows the applicant’s 1971 DD
Form 214 was authenticated with the same signature as reflected on his 2006
application.  Therefore, it appears the applicant signed both documents.


2.  It is also noted that the applicant signed his enlistment contract
indicating a SSN he now contends he never had.

3.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s separation was administratively correct and in conformance
with applicable regulations.  Without having the discharge packet to
consider, it is presumed his characterization of service was commensurate
with his overall record of service.  As a result, there is no basis for
granting the applicant's request to upgrade his undesirable discharge to
honorable.

4.  Records show the applicant should have discovered the alleged errors
now under consideration on 9 September 1971; therefore, the time for the
applicant to file a request for correction of any error expired on 8
September 1974.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the best interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

LS_____  __PS____  __AM____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  _____Linda Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001695                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19710909                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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