IN THE CASE OF:	  

		BOARD DATE:	  21 May 2009

		DOCKET NUMBER:  AR20090002499 


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 (UD) be upgraded and that the Social Security Account Number (SSAN) listed in Item 3 (Social Security Number) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to reflect the number "4" instead of the number "6" as the seventh digit.   

2.  The applicant states, in effect, that upon his return from the Republic of Vietnam (RVN) in 1966, he did not expect to be treated like a hero; however, he also did not expect, nor did he deserve, to be treated like a war criminal.  He states that upon his arrival at the airport in the United States with fellow Soldiers, there were 30 or more demonstrators with signs that read baby killers and war mongers.  The demonstrators were shouting obscenities and spitting at them, and some even threw things at them.  These things occurred after he was already shaky from his experiences in the RVN.  He claims he met his wife at the West Point Military Academy in New York, they had a child in June 1967, and two months later he received orders for Korea.  Prior to departing for Korea, he moved his family into a house and believed he was moving on from his experiences in the RVN.  However, upon his return from Korea, he found that his family had moved from their home to a duplex and that most of their personal belonging were gone, and that his wife was being unfaithful.  He states he was determined to make things work and attempted to function as a Soldier, but between marital problems and the nightmares and depression, he could not function at full capacity.  


3.  The applicant claims that he began to get in trouble, was drinking, and when his wife left him, he went absent without leave (AWOL) in his attempt to find his wife and child.  He found his wife living with another man and she refused to leave.  He returned to duty and received an Article 15.  Shortly thereafter, he went AWOL again to be with his wife and child in order to try and work things out. He believes his UD was too harsh given the circumstances that dictated his actions.  

4.  The applicant provides the following documents in support of his application:  self-authored statement; SSAN Card; Social Security Administration letter, dated 12 March 2009; and DD Forms 214, dated 10 August 1970 and 9 January 1968, respectively. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's UD be upgraded and that his SSAN listed on his DD Form 214 be corrected.

2.  Counsel states, in effect, that on behalf of the applicant and in accordance with Title 32, Code of Federal Regulations, sections 581.3(d)(3), the American Legion submits the applicant's request that his UD be upgraded and that the SSAN listed on his DD Form 214 be corrected accordingly.

3.  Counsel provides a statement outlining the applicant's request and arguments.

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 record shows he initially enlisted in the Regular Army (RA) and entered active duty on 5 January 1961, and was trained in and awarded military occupational specialty (MOS) 05B (Radio Operator).  
3.  On 31 December 1963, the applicant was honorably released from active duty (REFRAD), by reason of overseas returnee.  The DD Form 214 he was issued at the time shows he held the rank of private/E-2 (PV2), and that he had completed 2 years, 11 months, and 26 days of active military service during the period covered by the DD Form 214 (5 January 1961-31 December 1963). 

4.  On 25 August 1964, the applicant enlisted in the RA for 4 years.  He was trained in MOS 05H (Morse Interceptor) and was assigned to the United States Military Academy (USMA), West Point, New York.  He continued to serve until
9 January 1968, at which time he was honorably discharged, in the rank of sergeant (SGT), for the purpose of immediate reenlistment and reenlisted for
6 years.  The DD Form 214 he was issued at the time shows he completed a total of 6 years, 1 month, and 6 days of active duty service.  

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to SGT on 14 December 1967, and that this is the highest rank he attained while serving on active duty.  It also shows that he completed overseas tours in France, Korea, and the RVN, where he served from 6 April 1965 through 23 May 1966.  His record shows that he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal with Device (1960), Armed Forces Expeditionary Medal (AFEM), 2 Overseas Service Bars, and the Expert Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

6.  The applicant's record contains a DA Form 41 (Record of Emergency Data), dated 1 October 1962, which lists his SSAN using the number "4" as the seventh digit.  It also contains a DD Form 398 (Statement of Personal History), dated 
25 August 1964, which also lists the number "4" as the seventh digit of his SSAN. 

7.  On 16 April 1968, a Summary Court-Martial (SCM) found the applicant guilty of violating Article 92 of the Uniform Code of Military Justice (UCMJ) by being derelict in the performance of his duties as supply sergeant from about
30 January 1968 to about 18 March 1968 in that he negligently failed to properly maintain the Battery supply records.  The resultant sentence was a forfeiture of $150.00 per month for one month.

8.  On 25 September 1969, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty at the time prescribed.  His punishment for this offense was 14 days of extra duty and restriction.  

9.  On 19 January 1970, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 9 December 1969 until on or about 9 January 1970.

10.  On 7 July 1970, a DD Form 458 was prepared preferring an additional court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about  16 February 1970 until on or about 
23 June 1970.

11.  On 16 July 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UD, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

12.  In his request for discharge the applicant acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UD and elected to submit a statement in his own behalf.

13.  In the statement he provided with his discharge request, the applicant indicated that on 6 December 1969, his Provost Sergeant had stated there were some questions as to the performance of duties by himself and two other NCOs which concerned directing the men in correctional custody to rake some leaves.  He claimed the Provost Sergeant instructed him to go home and informed him he would be called when he was needed to discuss the situation.  However, he was never called.  He stated that he remained home until 9 January 1970, at which time he was arrested for being AWOL.  During this period he was not being paid and his family had depleted their savings and had no money, and was having a hard time.  Both his wife's family and his own were suffering hard times due to medical bills, and he went AWOL in order to work and provide for his family until he was able to put enough aside to hold them for awhile.  He further states he then returned and surrendered at which time he was placed in the stockade to await trial for his AWOL.

14.  On 5 August 1970, the separation authority approved the applicant’s request for discharge and directed that he receive an UD.  On 10 August 1970, the applicant was discharged accordingly.  
15.  The DD Form 214 issued to the applicant on 10 August 1970 confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It further shows that at the time he had completed 
2 years and 27 days of creditable active military service during the period covered by the DD Form 214 (9 January 1968 - 10 August 1970) and had accrued 186 days of time lost due to AWOL.  Item 3 (Social Security Number) lists the number "6" as the seventh digit of his SSAN.  

16.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge within that board’s 15-year statute of limitations.

17.  The applicant provides a copy of his SSAN card and a letter from the Social Security Administration, dated 12 March 2009.  Both of these documents reflect the seventh digit of his SSAN as the number "4" vice the number "6".

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 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.  The separation authority can authorize a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.  At the time of the applicant’s discharge, the regulation provided for the issuance of an UD.    

19.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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 GD 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 HD.  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.  The applicant's contention that his SSAN listed on his DD Form 214 is incorrect and that the seventh digit should reflect the number "4" was carefully considered and found to have merit.  The evidence of record shows that during his enlistment processing, a DD Form 398 was completed on him which contains the SSAN he now claims to be correct.  

2.  The SSAN was not the primary identification number used at the time of the applicant's enlistment.  Instead, the Army Serial Number was the primary identification number used.  Therefore, it is reasonable to believe that when the SSAN began to be used his SSAN was incorrectly transcribed onto his records and ultimately led to his receiving a DD Form 214 that contained an incorrect SSAN in Item 3.  Therefore, it would be appropriate at this time to correct the SSAN in Item 3 of his DD Form 214 to show the seventh digit as the number 
"4" instead of the number "6."

3.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UD, which was consistent with regulatory policy in effect at the time, and accurately reflected the applicant's record of service during the enlistment under review.  The applicant's prior honorable active duty service is properly documented in DD Forms 214 he was issued in 1963 and 1968.  As a result, there is an insufficient evidentiary basis to support an upgrade of his UD at this late date.  

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 his 10 August 1970 DD Form 214 by deleting the seventh digit of the SSAN listed and replacing it with the number "4"; and by providing him with a correction to his separation document that includes this change.

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 his discharge.



      _________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)                                         AR20090002499



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ABCMR Record of Proceedings (cont)                                         AR20090002499



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