IN THE CASE OF:	  

		BOARD DATE:	    12 October 2010

		DOCKET NUMBER:  AR20100012576 


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 undesirable discharge be upgraded to a general discharge, that his date of birth (DOB) be corrected to show he was born in the month of June, and that the fifth digit of his Social Security Number (SSN) be changed to a “6.”

2.  The applicant states that when he was interviewed by the psychiatrist, the psychiatrist suggested that he become a “hippie.”  He goes on to state that he did become a hippie and he traveled and attended all kinds of gatherings but never once attended or participated in any un-American activities.  He continues by stating that drugs, sex, and rock and roll became a way of life until 22 September 1999 when he came to the Volunteers of America and since then he has completed their alcohol and drug treatment program and started a 6-month after care program at the Department of Veterans Affairs in Columbus, Ohio.  He further states that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) incorrectly reflects that he was born in January when in fact he was born in June and his SSN incorrectly reflects the fifth digit as a “0” when in fact it is a “6.”

3.  The applicant provides:

* A Certificate of Completion of an alcohol and drug treatment program dated 25 November 2009
* A copy of his DD Form 214
* A copy of his birth certificate
* A privacy release form to his congressional representative
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 was born on 29 June 1947 and was inducted with a moral waiver in Columbus, Ohio on 3 November 1967.  At the time of his induction his SSN indicated that the fifth digit was a “6.”  He was initially transferred to the Reception Station at Fort Jackson, South Carolina and on 7 November 1967 he was honorably discharged for the purpose of immediate enlistment after serving 5 days of active service.

3.  On 8 November 1967, he enlisted for a period of 3 years and training as a preventative medicine specialist and was transferred to Fort Gordon, Georgia to undergo his basic training.

4.  On 18 January 1968, nonjudicial punishment was imposed against him for failure to obey a lawful command from a superior commissioned officer.

5.  The applicant went absent without leave (AWOL) on 18 January 1968 and remained absent until he was returned to military control on 29 January 1968 and charges were preferred against him.

6.  On 6 February 1968 he underwent a mental status evaluation and the examining psychiatrist determined that there was no evidence of any mental condition warranting disposition through medical channels, that the applicant was capable of distinguishing right from wrong and adhering to the right.  He further indicated that the applicant enlisted with unrealistic expectations to escape an unpleasant home environment and recommended that the applicant be administratively separated.

7.  On 8 February 1968, he was convicted pursuant to his pleas by a special court-martial of being AWOL from 18 January to 29 January 1968 and of breaking restriction on 18 January 1968.  He was sentenced to confinement at hard labor and a forfeiture of pay for 6 months.  However, the convening authority suspended the portion of the sentence pertaining to confinement at hard labor for a period of 6 months, unless sooner vacated.  On 8 March 1968, the convening authority vacated the suspended sentence and directed that it be duly executed.  

8.  Meanwhile, on 10 February 1968, the applicant’s commander notified him that he was initiating action to separate him from the service for unfitness under the provisions of Army Regulation 635-212 due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He cited the applicant’s disciplinary record and his repeated disciplinary problems as the basis for his recommendation.  He also stated that the applicant had stated that if he was not discharged he would go AWOL again and would not return.

9.  After consulting with counsel, the applicant waived all of his rights and declined the opportunity to submit a statement in his own behalf.

10.  The appropriate authority (a brigadier general) approved the recommendation for discharge on 14 March 1968 and directed that the applicant be furnished an Undesirable Discharge Certificate (DD Form 258A).

11.  Accordingly, he was discharged under other than honorable conditions on 26 March 1968 under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil and military authorities.   He had served 3 months and 19 days of active service during this enlistment and had 29 days of lost time due to AWOL and confinement.  His DD Form 214 issued at the time of his discharge reflects that the fifth digit of his SSN is a “0” and that his DOB is 29 January 1947.

12.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil and/or military authorities, established pattern for shirking, established pattern of failure to pay just debts, drug addiction, failure to support dependents and lewd or indecent acts were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge when compared to his overall undistinguished record of service.  

4.  However, the evidence of record does show that the applicant’s SSN and DOB are incorrectly entered on his DD Form 214.  Accordingly, his SSN should be corrected to reflect a “6” in the fifth digit and his DOB should be corrected to show his birth month as “June” instead of “January” as currently reflected.

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 in block 3 of his DD Form 214 that the fifth digit of his SSN is a “6” (XXX-X6-XXXX).
* Showing in block 9 of his DD Form 214 that his birth month is “Jun”       (29 Jun 47)

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 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)                                         AR20100012576





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ABCMR Record of Proceedings (cont)                                         AR20100012576



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