BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090012958 


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 undesirable discharge be upgraded to honorable.  He also requests that the second and third digits of his social security number (SSN) in item 3 (SSN) of his DD Form 214 (Report of Transfer or Discharge) for the period ending 14 October 1969 be corrected.

2.  The applicant states, in effect, that he was absent without leave (AWOL) due to marital problems.  He contends that when he received orders for Vietnam, he asked to be sent to Germany because as a sergeant he could have taken his wife with him.  He indicates that he went to Vietnam, that he spent 11 months and 16 days there, that he got hurt in Vietnam, and that he was exposed to Agent Orange.  He also states that the second digit of his SSN should be "1" and the third digit should be "3" in item 3 of his DD Form 214 for the period ending 14 October 1969.

3.  The applicant provides a Department of Veterans Affairs (DVA) Form 21-4138 (Statement in Support of Claim); a DVA letter, dated 27 July 2009; and DVA documentation 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 enlisted in the Regular Army on 27 May 1965 for a period of 3 years.  His DD Form 398 (Statement of Personal History), dated 4 June 1965, shows the second digit of his SSN as "1" and the third digit as "3."  He successfully completed basic combat training and advanced individual training in military occupational specialty 13B (field artillery crewman).  He served in Vietnam from 11 November 1965 to 30 November 1966.  He attained the rank of sergeant/pay grade E-5 on 30 October 1967.  On 8 November 1967, he was honorably discharged for immediate reenlistment.

3.  Item 3 of the applicant's DD Form 214 for the period ending 8 November 1967 shows the second digit of his SSN as "1" and third digit of his SSN as "3."

4.  The applicant reenlisted on 9 November 1967 for a period of 6 years.

5.  On 22 January 1968, nonjudicial punishment was imposed against the applicant for being AWOL from 15 January 1968 to 21 January 1968.  His punishment consisted of a reduction to pay grade E-4 and extra duty.

6.  On 26 July 1968, the applicant was convicted by a special court-martial of being AWOL from 3 April 1968 to 20 June 1968 in accordance with his plea.  He was sentenced to hard labor without confinement for 3 months, to forfeit $125.00 pay per month for 3 months, and to be reduced to pay grade E-1.  On 26 July 1968, the convening authority approved only so much of the sentence as provided for hard labor without confinement for 2 months, forfeiture of $50.00 pay per month for 3 months, and reduction to pay grade E-1.  On 6 August 1968, the convening authority action taken on 26 July 1968 was withdrawn and the following was substituted:  Only so much of the sentence as provided for restriction to the limits of Fort Campbell, Kentucky, for 2 months, extra duties for 14 days, and forfeiture of $125.00 pay per month for 3 months.

7.  On 17 February 1969, the applicant was convicted by a special court-martial of being AWOL from 3 December 1968 to 8 January 1969 in accordance with his plea.  He was sentenced to be confined at hard labor for 3 months and to forfeit $97.00 pay per month for 6 months.  On 17 February 1969, the convening authority approved the sentence but suspended that portion of the sentence as provided for confinement at hard labor for 3 months.
8.  On 26 April 1969, the applicant went AWOL and returned to military control on 8 July 1969.  On 26 September 1969, charges were preferred against the applicant for the AWOL period.

9.  On 12 September 1969, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, after consulting with counsel.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration [currently known as the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

10.  On 6 October 1969, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.

11.  Accordingly, the applicant was discharged with an undesirable discharge on 14 October 1969 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 3 years, 10 months, and 1 day of creditable active service with 200 days of lost time due to AWOL.

12.  Item 3 of the applicant's DD Form 214 for the period ending 14 October 1969 shows the second digit of his SSN as "3" and the third digit of his SSN as "1."

13.  All of the applicant's service personnel records show the second digit of his SSN as "1" and the third digit of his SSN as "3."

14.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

15.  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.  At the time, an undesirable discharge was normally considered appropriate.

16.  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.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  Marital problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show the applicant sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to being AWOL.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The applicant's record of service during his last enlistment included one nonjudicial punishment, two special courts-martial convictions, and 200 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

5.  The evidence of record shows the applicant's second digit of his SSN is "1" and the third digit is "3."  Therefore, it would be appropriate to correct item 3 of his DD Form 214 for the period ending 14 October 1969.



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:

	a.  deleting the second and third digits from item 3 of his DD Form 214 for the period ending 14 October 1969; and 

	b.  adding the entries "1" as the second digit and "3" as the third digit to item 3 of this DD Form 214.

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 a discharge upgrade.



      ____________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)                                         AR20090012958



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ABCMR Record of Proceedings (cont)                                         AR20090012958



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