RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060013440 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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 effect, that his undesirable discharge be upgraded to honorable and that his social security number be corrected to read 
135-##-####. 

2.  The applicant states, in effect, that his social security number is incorrect in his military records.  He also states that upon the death of his father on 8 July 1972, he was denied permission to attend the funeral and went absent without leave (AWOL).   When he returned from the funeral he accepted a discharge without a full understanding. 

3.  The applicant provides a copy of his Armed Forces of the United States Report of Transfer or Discharge from Active Duty (DD Form 214), application for disability insurance benefits using a social security number of 135-##-####, and a waiver agreement to return to the state of New Jersey.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 29 August 1972, the date of his discharge.  The application submitted in this case is dated 11 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 military records are not available for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request. 

4.  On 28 June 1971, the applicant enlisted in the Regular Army for 3 years.  He did not complete his initial training and was not awarded a military occupational specialty.

5.  The discharge packet is missing from his military records.  However, his DD Form 214 shows that he was administratively discharged on 29 August 1972, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable. He had completed 4 months and 14 days of creditable active duty and had 289 days of lost time due to AWOL.

6.  On 29 May 1975, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

7.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records (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.

8.  The applicant's finance records show that he enlisted under the social security number of 435-##-####, and continued to use this number until his discharge on 28 June 1971.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army using social security number 435-##-####.  He now contends that the correct number is 135-##-####.  However, he has not provided any convincing evidence to support his contention.   

2.  For historical purposes the Army has an interest in maintaining the accuracy of its records.  The information contained in those records must reflect the conditions and circumstances that existed at the time the records were created.

3.  Therefore, there is no basis for granting the applicant's request to change the social security number that he used during his military service.  


4.  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.  The character of the discharge is commensurate with his overall record.

5.  The applicant's record is devoid of any redeeming service.  

6.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

8.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 29 May 1975.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 28 May 1978.  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 interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__DKH __  __LMD __  __KAN___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.




__   Kathleen A. Newman___
          CHAIRPERSON




INDEX

CASE ID
AR20060013440
SUFFIX

RECON
 
DATE BOARDED
20070320
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19720829
DISCHARGE AUTHORITY
AR .635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.