RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 April 2007
      DOCKET NUMBER:  AR20060013198


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Scott W. Faught               |     |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, in two separate applications, that his
discharge be upgraded; that his social security number (SSN) on his DD Form
214 (Armed Forces of the United States Report of Transfer or Discharge) be
corrected to read 325-__-____; and that the date of entry on his DD Form
214 be corrected to read 5 September 1967.

2.  The applicant states that he had no choice but to go absent without
leave (AWOL) to attend to family problems.  He also believes that his
learning disability left him at a disadvantage, and he signed whatever he
was told to sign because he could not read what was being presented to him.
 He states his DD Form 214 shows his SSN as 355-__-___.  He also states he
was inducted on 5 September 1967, not 6 September 1967.

3.  The applicant provides a separate Addendum; his DD Form 214; a copy of
his Illinois driver’s license; a copy of his social security card; and a
copy of his voter’s registration card.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 21 October 1970.  The applications submitted in this case
were received on 15 September 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’s DD Form 47 (Record of Induction) shows he was inducted
into the Army on 6 September 1967.

4.  The applicant’s DD Form 47 did not list an SSN.  The first document to
list an SSN for him are reassignment orders dated 2 February 1968, and they
list an SSN completely different from the one he requests or the one on his
DD Form 214.  Later documents in his records variously list his SSN as 355-
__-____,   325-__-____, and even 335-__-____.  His DA Form 20 (Enlisted
Qualification Record) prepared on 8 October 1970 (an earlier version is not
available) shows his SSN as 325-__-____.

5.  On 28 February 1969, the applicant was convicted, in accordance with
his pleas, by a special court-martial of two specifications of being AWOL
from on    or about 3 January 1969 to on or about 22 January 1969 and from
on or about  26 January 1969 to on or about 20 February 1969.  He was
sentenced to be confined at hard labor for six months, to forfeit $73.00
pay per month for six months, and to be reduced to Private, E-1.

6.  On 23 June 1969, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for absenting himself from bed
check.

7.  On 8 December 1969, the applicant was convicted, in accordance with his
pleas, by a special court-martial of two specifications of being AWOL from
on    or about 18 July 1969 to on or about 21 August 1969 and from on or
about          7 September 1969 to on or about 31 October 1969.  He was
sentenced to be confined at hard labor for four months, to forfeit $85.00
pay for four months, and to be reduced to Private, E-1.

8.  On 12 May 1970, the applicant was convicted, in accordance with his
pleas, by a special court-martial of being AWOL from on or about 19 March
1970 to on or about 11 April 1970.  He was sentenced to 45 days
confinement.

9.  On 4 September 1970, court-martial charges were preferred against the
applicant charging him with being AWOL from on or about 7 August 1970 to on
or about 4 September 1970 and for wrongfully having in his possession one
ounce, more or less, of marijuana.

10.  When asked if he desired to have the applicant returned to his unit,
the applicant’s commander indicated the applicant was a chronic AWOL who
was also always in some type of trouble or another and recommended the
applicant be discharged with a bad conduct discharge after a maximum jail
sentence.

11.  On 24 September 1970, the applicant completed a separation physical
examination and was found qualified for separation.

12.  On 18 September 1970, after being advised by counsel of the basis for
his contemplated trial by court- martial for an offense punishable by a bad
conduct or dishonorable discharge, of the effects of a request for
discharge, and the rights available to him, the applicant personally and
without coercion requested a discharge under the provisions of Army
Regulation 635-200, chapter 10 for the good of the service in lieu of trial
by court-martial.  The applicant was advised of the effects of a discharge
under other than honorable conditions and that he might be deprived of many
or all Army and Veterans Administration benefits.  He elected not to submit
a statement in his own behalf.

13.  The appropriate authority approved the request and directed the
applicant be issued an Undesirable Discharge Certificate.

14.  On 21 October 1970, the applicant was discharged with a discharge
under other than honorable conditions, in pay grade E-1, under the
provisions of Army Regulation 635-200, chapter 10, discharge in lieu of
trial by court-martial.  He had completed 1 year, 11 months, and 16 days of
creditable active service and had 426 days of lost time.

15.  The applicant’s separation orders show his SSN as 325-__-____.

16.  The applicant’s DD Form 214 shows his SSN as 355-__-____ and shows he
was inducted on 6 September 1967.

17.  On 6 August 1981, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

18.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual’s admission of guilt.
A discharge under other than honorable conditions is normally considered
appropriate.  However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

19.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

20.  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.

21.  Army Regulation 635-5 prescribes the separation documents prepared for
Soldiers upon retirement, discharge, or release from active military
service or control of the Army.  It establishes standardized policy for the
preparation of the DD Form 214.  In pertinent part it states that the DD
Form 214 is a synopsis of the Soldier’s most recent period of continuous
active duty.  It provides a brief, clear-cut record of active Army service
at the time of release from active duty, retirement or discharge.

22.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

2.  The applicant’s request for discharge for the good of the service to
avoid trial by court-martial indicated that he had been advised by counsel
of the basis for his contemplated trial by court- martial for an offense
punishable by a bad conduct or dishonorable discharge, of the effects of a
request for discharge, and the rights available to him.  There is
insufficient evidence to show any learning/reading disability he may have
had caused him to sign the request for discharge only because he could not
read what was being presented to him.  In the absence of evidence to the
contrary, it is presumed his counsel’s advice was verbal rather than merely
a presentation of the document for the applicant’s signature.

3.  The applicant’s contention that he had no choice but to go AWOL to
attend to family problems is not credible.  There is no evidence to show he
ever sought other means, such as seeking assistance from his chain of
command or chaplain, to solve his problems.  After having been court-
martialed three times for being AWOL, he knew there were consequences to
going AWOL.  Considering his record of service, it appears an upgrade of
his discharge is not warranted.

4.  The applicant’s DD Form 47 confirms he was inducted into the Army on
     6 September 1967, not 5 September 1967.  Therefore, his DD Form 214 is
correct.

5.  There is much confusion in the applicant’s records concerning his SSN.
However, his separation orders and his DA Form 20 (which was prepared
shortly before he separated) showed his SSN to be 325-__-____.  Because the
last evidence of record shows the applicant used the SSN of 325-__-____, it
would be equitable to correct his DD Form 214 to conform to that evidence.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 August 1981, the date the ADRB
reviewed his case; therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 5 August 1984.  The
applicant did not file within the 3-year statute of limitations.  However,
there is compelling evidence to show that it would be in the interest of
justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__lds___  __jcr___  __swf___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that the DD Form 214 of the
individual concerned be amended to show his SSN as 325-__-____.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
upgrading his discharge or correcting his DD Form 214 to show he was
inducted on 5 September 1967.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013198                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070405                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19701021                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10. . . . .              |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |100.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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