IN THE CASE OF:	  

		BOARD DATE:	  31 July 2008

		DOCKET NUMBER:  AR20080006707 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge he received on 15 June 1969 be upgraded to a discharge under honorable conditions.  He further requests that the social security account number (SSAN) on his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 9 February 1969 be corrected to read 
***-**-8449 instead of ***-**8649.

2.  The applicant states, in effect, he has suffered enough due to his discharge under other than honorable conditions.  He states his commander jerked him out of his bunk from a sound sleep for no reason and started banging his head against a wooden table.  He further states he looked at his commander and told him if he laid another hand on him he would kill him.  He further states that he did not physically hurt anyone and it was the adrenaline from the attack that caused his outburst.  He states he is deeply sorry for what happened and that he apologized the next day and it was accepted.

3.  The applicant provides a copy of his DD Form 214 with an effective date of 
9 February 1969, his DD Form 214 with an effective date of 15 June 1969, 
12 pages from his military service record, 32 pages from his service medical records, and his social security card.


CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel record shows he enlisted in the Regular Army on 30 March 1968 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 91A (Medical Corpsman).  Item 1 (Service No.) of his 
DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows his service number as RA****0254.  Item 19 (SSAN) shows his SSAN as ***-**-8449.

3.  Orders showing the applicant's enlistment and assignment to Fort Campbell, Kentucky identify him with the service number RA****0254 and SSAN **-**-8449.

4.  On 9 February 1969, the applicant was discharged for immediate reenlistment.  He had completed 10 months and 10 days of active service that was characterized as honorable.  Item 3 (Social Security Number) of his 
DD Form 214 for this period of service shows his service number as RA ****0254 and his SSAN as ***-**-8649.

5.  Orders showing the applicant's discharge and reenlistment identify him with the service number RA****0254 and SSAN ***-**-8449.

6.  On 10 February 1969, the applicant reenlisted for a period of 6 years.

7.  On 17 March 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order from a noncommissioned officer (NCO).

8.  On 3 April 1969, the applicant pled guilty and was found guilty at a special court-martial of communicating a threat to kill a commissioned officer, communicating a threat to kill an NCO, failure to obey a lawful order from a commissioned officer, and two specifications of failure to obey a lawful order from an NCO.  The convening authority approved the sentence on 3 April 1969.

9.  The applicant's separation processing package was not available for the Board's review.

10.  On 15 June 1969, the applicant was discharged for unfitness - an established pattern for shirking under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability) and issued an Undesirable Discharge Certificate.  He had completed 4 months, and 6 days active service that was characterized as under other than honorable conditions.  

11.  Orders throughout the applicant's military personnel record identify him with the service number RA****0254 and SSAN ***-**-8449.  

12.  The copy of the applicant's social security card shows his SSAN to 
be ***-**-8449

13.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 24 June 1970, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant was was properly discharged.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation provided that commanders would not take action under this regulation in lieu of disciplinary action solely to spare an individual who may have committed serious misconduct the harsher penalties which may be imposed under the UCMJ.  Paragraph 6a(4) of the regulation provided that members who had established a pattern for shirking were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate. However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded because he has suffered enough for his acts.  He contends his commander woke him up from a sound sleep and began banging his head on a wooden table.  He also contends he never actually hurt anyone.  However, the applicant has not submitted any evidence to substantiate his contentions.  

2.  Although the applicant's separation package was not available it is presumed that the Army's administrative processing of the applicant for discharge is correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

4.  A review of the applicant's record of service, which included non-judicial punishment and conviction by a special court-martial, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

5.  The ABCMR does not correct records solely based on the passage of time.

6.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's undesirable discharge.

7.  The applicant contends his SSAN on his DD Form 214 with an effective date of 9 February 1969 is incorrect.

8.  At the time of the applicant's initial enlistment service numbers were assigned to incoming personnel as a means of identification.  The applicant's DD Form 4 from his initial enlistment, orders contained throughout the applicant's military personnel record, and his DD Form 214 with an effective date of 15 June 1969 all identify the applicant with the same service number and SSAN.  His social security card provides further evidence of his SSAN.  It is clear that a typographical error occurred when completing the applicant's DD Form 214 with an effective date of 9 February 1969.  Therefore, it would be appropriate to change Item 3 of his DD Form 214 with an effective date of 9 February 1969 to show his SSAN as ***-**-8449.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X____  ___X___  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Item 3 of the applicant's DD Form 214 with an effective date of 
9 February 1969 to show his SSAN as ***-**-8449 instead of ***-**-8649.

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 an upgrade of the undesirable discharge received by the applicant on 15 June 1969.  




      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080006707





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ABCMR Record of Proceedings (cont)                                         AR20080006707



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