IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100018252 


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) as follows:

* item 3 (Social Security Number (SSN)) to show the SSN as shown on his social security card
* item 24 (Character of Service) to show "under honorable conditions - general)" instead of "under other than honorable conditions."

2.  The applicant states the SSN listed on his DD Form 214 is not even close to his and he believes it is someone else's SSN.  He adds that he was approved for a general discharge and it should be shown on his DD Form 214.

3.  The applicant provides copies of the following documents:

* his social security card
* his DD Form 214
* his separation packet

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.  Having had prior service, the applicant's records show he enlisted in the Regular Army for a period of 4 years on 9 May 1989.  Item 2 (SSN) of his DD Form 4 (Enlistment/Reenlistment Document) shows his SSN as 
"4XX-6X-9XXX," the same as that shown on his social security card.  All allied documents prepared in connection with his enlistment show this SSN.

3.  He completed basic combat and advanced individual training and was awarded military occupational specialty 52D (Power Generation Equipment Repairer).  He served in various positions and was promoted through the ranks to sergeant/E-5.  During this period of enlistment he completed and/or authenticated several personnel, medical, financial, and other military documents indicating that his SSN is "4XX-6X-9XXX."

4.  On 5 October 2000, he executed a 3-year reenlistment in the Regular Army.  Item 2 of his DD Form 4 again listed his SSN as "4XX-6X-9XXX" and he authenticated this form as well as allied documents by placing his signature in the appropriate blocks.

5.  On 24 October 2002, he departed his Fort Hood, TX, unit in an absent without leave (AWOL) status and on 23 November 2002 he was dropped from the Army rolls.  He surrendered to military authorities at Fort Hood on 14 October 2004.

6.  On 17 February 2005, he was convicted by a special court-martial of one specification of AWOL from 24 October 2002 to 14 October 2004.  The court sentenced him to confinement for 1 year.  His sentence was approved by the convening authority on 5 May 2005.

7.  On 27 September 2005, he was released from confinement and on 29 September 2005 his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations) for misconduct for commission of a serious offense (AWOL).  He recommended a general under honorable conditions discharge.

8.  On 29 September 2005, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights that were available to him.  He waived consideration of his case by an administrative separation board, a personal appearance before an administrative separation board, and he elected not to submit a statement on his own behalf.

9.  He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

10.  On 17 October 2005, his immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct with the issuance of a general under honorable conditions discharge.

11.  On 25 October 2005, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct for commission of a serious offense and he directed the applicant's service be characterized as general under honorable conditions.  Accordingly, the applicant was discharged on 2 November 2005.

12.  His DD Form 214 shows he was discharged in accordance with Army Regulation 635-200, paragraph 14-12c.  He completed 4 years, 6 months, and 17 days of creditable active service during this period with 943 days of lost time.  This form further also shows the following entries:

* item 3 shows his SSN as "0XX-6XX-0XXX"
* item 24 shows his character as "under other than honorable conditions"

13.  On 1 December 2005, the Chief, Transition Center, Fort Knox, KY, requested by memorandum to the Director, National Personnel Records Center, St. Louis, MO, that the applicant's DD Form 214 be destroyed because it was issued in error.

14.  On an unknown date, a new DD Form 214 was issued listing his correct SSN as "4XX-6X-9XXX."  However, it listed his character of service as "under other than honorable conditions."

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 prescribes procedures for separating members for misconduct which includes minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that upon initiating the separation packet, his immediate commander recommended a general discharge.  Although he was not bound by that recommendation, the separation authority also approved a general discharge.  It appears that his DD Form 214 erroneously listed his character of service as under other than honorable conditions.  Therefore, he is entitled to correction of his DD Form 214 to show his character of service as general under honorable conditions.

2.  The applicant's DD Form 214 had been reissued, and the reissued form showed his correct SSN.

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 

issuing the applicant a new DD Form 214 listing his character of service as general, under honorable conditions and ensuring his SSN is listed as 
4XX-6XX-9XXX.



      _____________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)                                         AR20100018252



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ABCMR Record of Proceedings (cont)                                         AR20100018252



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