IN THE CASE OF:	  

		BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090007986 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.  He also requests that the second and sixth digits of his social security number (SSN) in item 3 (SSN) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.

2.  The applicant states that someone else committed the crime, that his civil conviction was in error, and that his SSN is wrong (second digit should be "2" and sixth digit should be "6").  He contends that he was 20 years old and did not have an attorney, that his friend committed the crime, and that he did not want to get his friend in trouble so he did not speak up about what really happened.  He indicates that his public defender suggested that he plead guilty to the crime because he would only have to serve a short amount of time instead facing possible conviction and going to prison for a long time.  In hindsight, he realizes this was a mistake and that he used poor judgment.

3.  The applicant provides a document from the Social Security Administration in Boston, Massachusetts, and a copy of his DD Form 214 in support of his application.

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 enlistment contract, dated 24 March 1981, shows the second digit of his SSN as "4" and the sixth digit as "5."  He enlisted in the Regular Army on 24 March 1981 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 94B (food service specialist).

3.  On 8 November 1982, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation, disobeying two lawful orders, and failure to repair.  His punishment consisted of a reduction to E-1 and a forfeiture of pay.

4.  On 14 January 1983, the applicant was tried by the Superior Court, Cambridge, Massachusetts, and found guilty of armed robbery.  He was sentenced to a term not exceeding 5 years.

5.  On 20 April 1983, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct (civil conviction).  The unit commander cited the applicant’s civil conviction.

6.  On 3 May 1983, the applicant requested consideration of his case by a board of officers.

7.  Records show the applicant appeared before a board of officers on 11 July 1983.  The board found that the applicant was not desirable for further retention in the military service because of his civil conviction and frequent incidents of a discreditable nature with military authorities since his return from civil confinement.  The board recommended that the applicant be discharged from the service because of misconduct and that he be furnished a discharge under other than honorable conditions.

8.  On 10 August 1983, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.

9.  Accordingly, the applicant was discharged under other than honorable conditions on 15 August 1983 under the provisions of Army Regulation 635-200, paragraph 14-12, for misconduct (civil conviction).  He had served 1 year, 10 months, and 28 days of creditable active service with 174 days of lost time due to civilian confinement.

10.  Item 3 of the applicant's DD Form 214 shows the second digit of his SSN as "4" and the sixth digit of his SSN as "5."

11.  All of the applicant's service personnel records show the second digit of his SSN as "4" and the sixth digit of his SSN as "5."

12.  In support of his claim to amend his SSN, the applicant provided a letter from the Social Security Administration which shows the second digit of his SSN is "2" and the sixth digit of his SSN is "6."

13.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

15.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that someone else committed the civilian crime relates to evidentiary and procedural matters that should have been addressed and conclusively adjudicated during his civilian trial.
 
2.  The applicant’s record of service included one instance of nonjudicial punishment and 174 days of lost time.  He also committed a serious civil offense while in the Army.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  The evidence of record shows the same SSN, x4x-xx-5xxx, was used at the time of the applicant’s enlistment and release from active duty.

6.  There is no evidence that suggests the applicant has or would suffer any injury or injustice as a result of the Army maintaining its records with the SSN under which he served.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, this Board is reluctant to recommend that those records be changed.  While it is understandable the applicant desires to now record his correct SSN in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.

7.  The applicant is advised that a copy of this decisional document along with his application and the supporting evidence he provided, which confirms his correct SSN, will be filed in his official military personnel file (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the SSN recorded in his military record and to satisfy his desire to have his correct SSN documented in his OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X_____  ____X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      ____________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)                                         AR20090007986



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ABCMR Record of Proceedings (cont)                                         AR20090007986



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