IN THE CASE OF:	

		BOARD DATE:	  8 January 2010

		DOCKET NUMBER:  AR20090013314


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, correction to the social security number (SSN) shown on his DD Form 214 (Report of Separation from Active Duty) for the period ending 23 June 1971 and DD Form 214 (Report of Separation from Active Duty) for the period ending 7 November 1973.  He also requests, in effect, that his undesirable discharge (UD) be upgraded to general.

2.  The applicant states, in effect, that the first three digits of the SSN shown on his 1971 and 1973 DD Forms 214 should be shown as “253” instead of “523.”  He also states that he is having problems and needs medical treatment.  He also states that he served in Vietnam and was injured there in May 1971.  He returned to the United States after spending time in hospital and was placed on alert to return to Vietnam.  He was on alert when he reenlisted.  After he completed training, he was placed back on alert for Vietnam, at which time he lost his nerve and feared for his life.  He had constant nightmares about his first tour in Vietnam and his injury was a traumatic experience.  He turned to drugs and alcohol attempting to get over his fears of being killed when he returned to Vietnam.  He finally went absent without leave (AWOL) and ended up with a discharge under conditions other than honorable.  He was only 21 years old at the time and his time in the Army was under hostile conditions.  

3.  The applicant further states that he loved his country and really wanted to complete his service.  He did not have anyone to help him overcome his fears at that time.  He is now 56 years of age and still experiencing nightmares and waking up screaming.  He sees his mistakes and regrets the choices he made then and would take it back if he could.  
4.  In support of his application, the applicant provides copies of his 1971 and 1973 DD Forms 214 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 records show he enlisted in the Regular Army (RA) in pay grade E-1 on 5 August 1970, for 3 years.  On the date of his enlistment in the RA the applicant was 18 years of age.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States), Item 1 (Service No./SSN) shows the first three digits of his SSN as “523.”

3.  The applicant's DA Form 20 (Enlisted Qualification Record), Section 1, shows the first three digits changed in pencil from “523” to “253.”  

4.  The applicant completed basic combat training and was awarded military occupational specialty 67N, helicopter repairman.  He was promoted to pay grade E-4 on 20 January 1971.  This was the highest grade that he held.  

5.  The applicant served in Vietnam from 25 February to 6 May 1971.  His records show he sustained second degree burns to his left lower extremity on 13 April 1971, when a flare blew up.  He was placed in a patient status and was medically evacuated to Fort Gordon, Georgia.  He returned to duty on 3 June 1971.

6.  The applicant was honorably discharged on 23 June 1971 for the purpose of immediate reenlistment and issued a DD Form 214.  Item 3 (SSN) of his DD Form 214 shows the first three digits as “523.”  He reenlisted on 24 June 1971.  His DD Form 4, Item 1, also shows the first three digits of his SSN as “523.”  

7.  On 18 August 1971, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order on 22 July 1971.  His punishment included a forfeiture of $25.00 pay for 1 month.  

8.  On 1 September 1971, the applicant accepted punishment under Article 15, UCMJ, for willfully disobeying a lawful order from his superior noncommissioned officer on 19 August 1971.  His punishment included a reduction to pay grade    E-3 and 14 days extra duty and restriction for 14 days.  

9.  On 23 February 1972, the applicant’s reduction to pay grade E-3 was set aside, with restoration of all rights, privileges, and property affected.

10.  The applicant was reported AWOL on 6 July 1972 and returned to duty on 12 July 1972.

11.  On 18 September 1972, the applicant accepted punishment under Article 15, UCMJ, for being AWOL from 31 July to 8 September 1972.  His punishment included a reduction to pay grade E-3 (suspended for 3 months), a forfeiture of $50.00 pay per month for 2 months, 15 days restriction (suspended for 15 days), and 7 days extra duty.  He did not appeal the punishment.

12.  On 29 January 1973, the applicant accepted punishment under Article 15, UCMJ, for being AWOL from 18 to 27 January 1973.  His punishment included 14 days restriction and 7 days extra duty.  He did not appeal the punishment.

13.  The applicant was again reported AWOL on 3 April 1973 and dropped from the rolls of his organization on 2 May 1973.  He was apprehended by civilian authorities on 26 September 1973 and returned to military control.

14.  On 16 October 1973, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, U.S. Army Garrison, Fort Campbell, Kentucky.  The applicant was charged with one specification of being AWOL from 3 April to 26 September 1973.

15.  On 15 October 1973, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

16.  In a statement, the applicant stated that he would like to get out of the Army because of family and financial problems.  He also stated that he felt he could not cope with the hassles of everyday problems of the Army.  The pay was not enough and he felt a sense of slavery towards himself.  He believed he could cope better with civilian life.  He further stated that he felt he should get out of the Army while he was able to do so and understood he would receive a less than honorable discharge.

17.  On 18 October 1973, the applicant's unit commander recommended approval of the applicant's request and the issuance of a UD Certificate.  The unit commander stated that the applicant’s numerous instances of AWOL clearly indicated a lack of effort to perform assigned duties in a satisfactory manner, which was indicative of a defective attitude toward honorable service.

18.  On 23 October 1973, the applicant’s battalion commander recommended approval of the applicant's request and the issuance of a UD Certificate.  The battalion commander stated that the recommendation was based upon careful consideration of the applicant’s service record, to include his age, education, aptitude scores, training, and experience.  Further effort to rehabilitate the applicant was unlikely to produce an acceptable Soldier.

19.  On 29 October 1973, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that a UD Certificate be issued, and reduction to pay grade E-1.

20.  The applicant was discharged on 7 November 1973 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under conditions other than honorable.  He was credited with 1 year, 8 months, and 27 days of net active service and 231 days of lost time due to AWOL.

21.  Item 3 (SSN) of the applicant's DD Form 214 shows the first three digits as “523.”  

22.  On 2 April 1973, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

23.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, 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.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

24.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's desire to have the SSN shown on his 1971 and 1973 DD Forms 214 changed is acknowledged.  However, the applicant predominantly used the SSN showing the first three digits as “523” on his entry into the RA and until he was separated in 1973.  Therefore, there is no basis for compromising the integrity of the Army's records.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should actually 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, there is no basis to recommend that the SSN shown on his 1971 and 1973 DD Forms 214 be changed.  However, a copy of this Record of Proceedings will be filed in his Official Military Personnel File to clarify any discrepancy in SSNs.

2.  In view of the circumstances in this case, the applicant is also not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.

3.  The applicant's contention that his age and service in Vietnam impacted his ability to serve successfully is without merit.  The applicant was 18 years of age when he enlisted in the RA.  He served from his enlistment in August 1970 through his period of service in Vietnam without incident.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

4.  Additionally, the applicant has submitted no evidence to mitigate his offenses or to show that he was denied any assistance with any problems from his chain of command during his period of service in Vietnam or after.  Even if he were experiencing problems, it was his responsibility to seek assistance.
5.  The applicant’s unit commander stated that his numerous instances of AWOL clearly indicated a lack of effort to perform assigned duties in a satisfactory manner.  The applicant’s battalion commander stated his recommendation to approval the applicant’s discharge request had been based upon careful consideration of his service record, to include his age, education, aptitude scores, training, and experience.  The applicant had been charged with one specification of being AWOL for 176 days and upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  The applicant also acknowledged he could be discharged under conditions other than honorable and furnished a UD Certificate.

6.  The applicant has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general discharge.

7.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

8.  The applicant's desire to have his UD upgraded so that he can qualify for medical and/or other benefits administered by the Department of Veterans Affairs and other Federal and State social services organizations is acknowledged; however, the Board does not grant relief solely for the purpose of an applicant qualifying for benefits administered by these agencies.

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

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)                                         AR20090001331



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ABCMR Record of Proceedings (cont)                                         AR20090013314



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