BOARD DATE:	  February 25, 2010

	DOCKET NUMBER: AR20090016091 


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 general under honorable conditions.  He also requests correction of his social security number on his DD Form 214 (Report of Separation from Active Duty).
 
2.  The applicant states that he was told his discharge would be upgraded after 6 months.  He found out it was not upgraded when he applied for Department of Veterans Affairs medical benefits.  He also contends that his social security number is entered incorrectly on his DD Form 214.

3.  The applicant provides 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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program on 20 April 1977.  Armed Forces Examining and Entrance Station, Newark, New Jersey, Active Duty Order Number 80-9, dated 20 April 1977, ordered him to report for discharge from the USAR and enlistment in the U.S. Army on 30 August 1977.  The applicant's social security number is shown on these orders as 153-52-XXXX.

3.  On 9 September 1977, the applicant reported to Fort Jackson, South Carolina, for basic combat training and advanced individual training in military occupational specialty 94B (Food Service Specialist).

4.  On 16 December 1977, the applicant was convicted by a special court-martial of two specifications of failure to go to his appointed place of duty at the time prescribed, two specifications of willfully disobeying a lawful order from a commissioned officer, five specifications of breaking restriction, and of being disorderly in public while in uniform.  His sentence consisted of confinement at hard labor for 3 months and a forfeiture of $200.00 pay per month for 3 months.  He served 78 days in confinement.

5.  The applicant was absent without leave (AWOL) on 26 January 1978.  He was confined at Fort Riley, Kansas, on 27 January 1978.

6.  On 31 January 1978, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 90 for willfully disobeying a lawful command from a commissioned officer, for violation of Article 91 for three specifications of willfully disobeying a lawful order, and two specifications for being disrespectful in language towards a noncommissioned officer.  The charge sheet shows his social security number as 153-52-XXXX.

7.  On 3 February 1978, additional charges were preferred for violation of Article 91 for being disrespectful in language towards a noncommissioned officer and for violation of Article 95 for escape from lawful confinement.

8.  The discharge packet is missing from his military records.  However, his DD Form 214 shows that he was administratively discharged on 20 March 1978 under the provisions of Army Regulation 600-200 (Personnel Separations), chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 3 months of creditable active duty and had 111 days of lost time due to AWOL and confinement.
9.  Item 3 (Social Security Number) of the applicant's DD Form 214 shows 
152-53-XXXX.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

12.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 5 years for violation of Article 90 and a punitive discharge and confinement for 3 years for violation of Article 91.

13.  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.

14.  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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should have been automatically upgraded after a period of 6 months.  He also contends that his DD Form 214 shows his social security number incorrectly.

2.  The available evidence clearly shows that the applicant enlisted using the social security number 153-52-XXXX.  His DD Form 214 shows a social security number of 152-53-XXXX.  Accordingly, his DD Form 214 should be corrected.

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

4.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.

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

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 showing his social security number as 153-52-XXXX in item 3 of his 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 upgrading 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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20090016091



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