IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100000349 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 December 1983 to show his correct social security number (SSN).  He also requests, in effect, a review of his discharge for a possible upgrade.

2.  The applicant states he was under the influence of alcohol and he was not offered treatment.  He further states, in effect, he is seeking an upgrade of his discharge for employment purposes.

3.  The applicant provides copies of his DD Form 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.  On 14 January 1981, the applicant enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP), for 6 years, in the rank/grade of private (PV1)/E-1.  His DD Form 1966 (Record of Military Processing - Armed Forces of the United States) shows that at the time of his enlistment in the USAR DEP he used the same SSN as shown on his DD Form 214.

3.  On 30 March 1981, the applicant was discharged from the USAR DEP and he enlisted in the Regular Army (RA) on 31 March 1981 using the same SSN as he used at the time of his enlistment in the USAR DEP.  He completed training as a tactical wire operations specialist and he was advanced to the rank/grade of private (PV2)/E-2.

4.  On 30 December 1981, the applicant was convicted, contrary to his pleas, by a summary court-martial of wrongfully appropriating, on or about 4 November 1981, a turntable of a value of about $130.00, the property of another Soldier.  His sentence included:

* hard labor without confinement for 45 days
* reduction to PV1/E-1
* forfeiture of $367.00

5.  On 15 October 1982, the applicant was convicted, pursuant to his pleas, by a special court-martial of the following:

* on or about 4 July 1982, attempting to steal U.S. currency of a value of $55.00, the property of another Soldier
* on or about 5 July 1982, failing to go at the time prescribed to his appointed place of duty
* on or about  1 July 1982, sleeping on post while serving as a sentinel
* on or about 30 July 1982, wrongfully appropriating U.S. currency of a value of $50.00, the property of another Soldier

6.  His sentence included:

* a bad conduct discharge (BCD)
* confinement at hard labor for 2 months
* reduction to PV1/E-1
* forfeiture of $365.00 per month for 6 months


7.  On 12 November 1982, the convening authority approved only so much of the sentence as provided for:

* a BCD
* confinement at hard labor for 2 months
* reduction PV1/E-1
* forfeiture of $365.00 per month for 3 months

8.  The convening authority directed:

* forfeitures apply to pay becoming due on and after the date of approval of action
* the Record of Trial be forwarded to the Judge Advocate General of the Army for review by a Court of Military Review
* pending completion of appellate review, the applicant be confined in the U.S. Disciplinary Barracks, Fort Leavenworth, KS, or elsewhere as competent authority may direct

9.  On 22 June 1983, the U.S. Army Court of Military Review set aside the guilty finding of wrongfully appropriating U.S. currency of a value of $50.00, the property of another Soldier, and affirmed only so much of the sentence as provided for a BCD and confinement at hard labor for 2 months.

10.  Special Court-Martial Order Number 143, issued by Headquarters,
7th Infantry Division, Fort Ord, CA, dated 2 November 1983, ordered the sentence executed.

11.  Accordingly, on 2 December 1983, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a duly reviewed and affirmed special court-martial conviction.  He completed 2 years, 6 months, and 26 days of net active service this period with issuance of a BCD.

12.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  The applicant provides a photocopy of his Social Security Card which shows an SSN completely different than the one shown on his DD Form 214 and in his Official Military Personnel File (OMPF).  The SSN shown on his DD Form 214 is the same number he used at the time of his enlistment in the USAR and in the RA.

14.  On 20 May 2010, the Army Review Boards Agency, Chief, Case Management Division, notified the applicant in writing that an original letter from the Social Security Administration certifying his name and SSN during his period of military service would be required to further address the issue regarding his SSN.  However, the applicant did not respond.

15.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to modify the severity of the punishment imposed.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

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.  The applicant contends his correct SSN should be shown on his DD Form 214.

2.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should 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 a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to now record his correct SSN in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.

3.  The applicant is advised that a copy of this decisional document along with his application and the supporting evidence he provided, which confirms his correct SSN, will be filed in his OMPF.  This should serve to clarify any questions or 

confusion in regard to the difference in the SSN recorded in his military record and to satisfy his desire to have his correct SSN documented in his OMPF.

4.  The applicant also requests upgrade of his BCD for employment purposes.

5.  There is no basis for upgrading the type of discharge that he received.  His records show that he was discharged as a result of a duly reviewed and affirmed special court-martial conviction and he has provided no evidence to show that the type of discharge he received was erroneous or unjust.

6.  There is no evidence in the available record to show that alcohol was the reason for any of his acts of misconduct or that he requested treatment for an alcohol problem and was denied. 

7.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

8.  Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits or to enhance an applicant's employability.

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

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)                                         AR20100000349



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ABCMR Record of Proceedings (cont)                                         AR20100000349



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