IN THE CASE OF:	

		BOARD DATE:	 26 January 2010 

		DOCKET NUMBER:  AR20090013917 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge for the period ending 16 April 1982.  He also requests correction of his social security number on DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 November 1971.

2.  The applicant states that he is not claiming an error was committed in his discharge.  He admits to being guilty of the charges that were brought against him and apologizes for his wrongdoing.  Because he is suffering from several severe disabilities and he needs his discharge upgraded in order to apply for benefits from the Department of the Veterans Affairs (VA).

3.  The applicant provides, in support of his application, a copy of his DD Form 214 for the period ending 24 November 1971, a copy of an NA Form 13038 (Certification of Military Service) for his period of service from 10 April 1974 through 23 January 1977, dated 1 November 2007; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending
16 April 1982; a letter of support from a friend, dated 8 July 2009; and a letter from a psychiatric social worker and a friend to the VA, both dated 8 July 2009.

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.  On 4 December 1969, the applicant was inducted into the Army of the United States for 2 years.  His social security number at the time was shown as 168-28-xxxx.  He was released from active duty on 24 November 1971 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  He had attained the rank/grade of specialist four (SP4)/E-4 and had completed 1 year, 11 months, and 21 days of creditable active duty service this period.

3.  An NA Form 13038, issued on 1 November 2007, shows that the applicant served in the Regular Army (RA) from 10 April 1974 through 23 January 1977.  His social security number is shown as 261-82-xxxx.

4.  On 24 January 1977, the applicant reenlisted in the Regular Army (RA) for a period of 5 years.  His DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows his social security number as 168-28-xxxx.

5.  On 11 June 1977, the applicant was promoted to the rank/grade of specialist five (SP5)/E-5.

6.  On 28 November 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating a lawful general regulation by making liquor purchases that exceeded his authorized monthly limit and exceeding his authorized dollar limitation.  The punishment included reduction to pay grade E-4 (suspended) and a forfeiture of $150.00 pay per month for 2 months.

7.  Records show that the applicant was absent without leave (AWOL) on 11 and 
12 February 1978.

8.  On 10 July 1978, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty on two separate occasions and for disobeying a lawful order issued by a senior noncommissioned officer on two separate occasions.  The punishment included reduction to pay grade E-3 (suspended) and 14 days of restriction.

9.  On 1 February 1980, the applicant reenlisted in the RA for 5 years.  His DD Form 4 shows his social security number as 261-82-xxxx and 168-28-xxxx.

10.  On 28 January 1982, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty.  The punishment included reduction to pay grade E-2, forfeiture of $309.00 pay per month for 2 months, and 45 days of restriction and extra duty.  The applicant appealed the punishment, but his appeal was denied.

11.  On 8 February 1982, the applicant accepted NJP for being drunk and disorderly in public.  The punishment included reduction to pay grade E-1 and forfeiture of $275.00 pay per month for 2 months.

12.  On 22 March 1982, court-martial charges were preferred against the applicant under the UCMJ for violation of Article 90, for willfully disobeying a lawful order from a commissioned officer.

13.  On 1 April 1982, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were 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, under the provisions of Army Regulation 635-200, chapter 10.

14.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged 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), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

15.  On 2 April 1982, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 16 April 1982, the applicant was discharged accordingly.  He had completed a total of 9 years, 11 months, and
26 days of creditable active military service and had accrued 2 days of time lost due to AWOL.

16.  The applicant's DD Form 214 for the period ending 16 April 1982 shows his social security number as 261-82-xxxx.

17.  On 15 June 1983, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

18.  The two letters of support, provided by the applicant, essentially state that he applicant is a man of good character.  He has always been very kind, he is a hard worker, and he seems to be a person of great integrity.  The letter from the psychiatric social worker reports that the applicant has been diagnosed with having a major depression with psychotic features.  He receives medication, individual therapy, and he is compliant with treatment and stable.

19.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or a general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

20.  Under the UCMJ, the maximum punishment allowed for violation of Article 90 for willfully disobeying a lawful order of a superior commissioned officer is a punitive discharge and confinement for 5 years.

21.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

22.  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.  The applicant contends that there was no error regarding his discharge.  However, he wants his discharge upgraded for the purpose of obtaining VA benefits.  He also contends that his social security number is incorrectly entered on his first DD Form 214 for the period ending 24 November 1971.

2.  The available evidence of record shows that the applicant's social security number was inconsistently entered as 168-28-xxxx or 261-82-xxxx.  However, the applicant has not provided any supporting documentation showing which number is correct.  The applicant is advised that a copy of this decisional document, along with his application and the supporting evidence he provided, will be filed in his Official Military Personnel File (OMPF).  This should serve to make those using his records aware of the inconsistent use of his social security number.  Therefore, this portion of the applicant's requested relief should be denied.

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

4.  The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of his properly issued discharge.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting this portion of the applicant's requested 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)                                         AR20090013917



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ABCMR Record of Proceedings (cont)                                         AR20090013917



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