IN THE CASE OF:	  

		BOARD DATE:	  22 April 2010 

		DOCKET NUMBER:  AR20090017524 


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, that his undesirable discharge be upgraded to a general discharge.  He also requests correction to the social security number on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the eighth digit is a “9” and not a “6.”

2.  The applicant states, in effect, Item 30 (Remarks) of his DD Form 214 states his discharge was to be ungraded to general after 10 years and he has not been notified of this correction.  

3.  The applicant provides no additional documentation in support of his applicant.

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 contain a DD Form 398 (Statement of Personal History), dated 25 March 1968.  The statement, which the applicant completed and signed, shows the eight digit of his social security number is
a “9.”  

3.  The applicant's military record shows he enlisted in the Regular Army in pay grade E-1 on 8 August 1969, for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 67A (Aircraft Maintenance Apprentice).  He was advanced to pay grade E-2 on 31 October 1969.   This is the highest grade held during his period of active service.

4.  The applicant was absent without leave (AWOL) from 1 December through 
10 December 1969, and from 21 June through 24 July 1970.

5.  A Criminal Investigation Division Report of Investigation, dated 21 August 1970, shows the applicant was apprehended, on 27 July 1970, by the Comanche County District Court, Lawton, Oklahoma, and convicted of destruction of public property and sentenced to 1 year in confinement on 9 August 1970.  The applicant did not appeal his conviction.

6.  On 27 August 1970, the applicant was notified of his company commander's intent to recommend him for discharge under the provisions of Army Regulation 635-206 (Conviction by Civil Court), due to a civil conviction.  

7.  On 27 August 1970, the applicant acknowledged notification of the proposed discharge recommendation due to civil conviction.  He waived his rights and elected not to submit a statement in his own behalf.

8.  On 12 September 1970, the applicant's company commander recommended that the applicant be discharged under the provisions of Army Regulation
635-206, due to conviction by civil court.  

9.  On 12 September 1970, the applicant’s battalion commander recommended approval of the company commander's discharge recommendation.

10.   On 23 October 1970, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206, due to a civil conviction with the issuance of an undesirable discharge.

11.  The applicant was discharged in pay grade E-1 on 29 October 1970, under the provisions of Army Regulation 635-206, due to a civil conviction with an Undesirable Discharge Certificate.  He was credited with completing 10 months and 6 days of net active service and he had 106 days of lost time due to being absent without leave and in confinement.  

12.  The applicant's DD Form 214, Item 3 (Social Security Number) shows the eighth digit as a "6."  Item 30 of his DD Form 214 contains the entry “10 years general.”  Item 32 (Civilian Education) of his DA Form 20 (Enlisted Qualification Record) shows he completed 10 years of schooling in 1969.

13.  On 7 October 1982, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

14.  Army Regulation 635-206, then in effect, provided that an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the Uniformed Code of Military Justice included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted an undesirable discharge was considered appropriate.

15.  Army Regulation 635-200 (Enlisted Separations), 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 (Separation Documents), then in effect, governed the preparation of the DD Form 214.  It stated that Item 30 would contain the highest civilian education level attained, when not adequately covered in Item 25 (Education and Training Completed).  The information would be taken from the DA Form 20.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, in view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The evidence of record shows the applicant was convicted in civil court and sentenced to 1 year in confinement.  He was notified of the proposed separation action due to his civil conviction.  He did not appeal the conviction.  He waived his rights and elected not to submit a statement in his own behalf.  It is apparent that his command ensured that the proper documents were prepared and signed by the proper authorities and he was discharged in accordance with Army Regulations applicable at the time.  There is nothing in the records and the applicant did not provide any evidence to show that he was denied due process or that his rights were violated. 

3.  The evidence of record shows the eighth digit of the applicant’s social security number is a “9” and that the digit "6" was erroneously entered on his DD Form 214.  Therefore, he is entitled to correction of Item 3 of his DD Form 214 to show the eighth digit of his social security number is a “9.”

4.  In accordance with the pertinent regulation, the highest civilian level of education completed by an individual (enlisted personnel) would be entered in Item 30 of the DD Form 214.  The information shown in Item 30 does not refer to the discharge being upgraded after a specific amount of time.

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

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

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 on the applicant’s DD Form 214, Item 3, the eighth digit of the social security number as a “9” and by providing him a corrected 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 an upgrade of his undesirable discharge to a general 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)                                         AR20090017524



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ABCMR Record of Proceedings (cont)                                         AR20090017524



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