IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110003108 


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 (Armed Forces of the United States Report of Transport or Discharge) to show his correct social security number (SSN).  He also requests that his undesirable discharge be upgraded to honorable.

2.  The applicant states he only recently noticed that his SSN was incorrectly entered on his DD Form 214 and wants it corrected.  He further states that he regrets what happened in the past.  When his brother was killed in an automobile accident, he became emotionally devastated.  He was very close to his brother.  The applicant was very immature and foolish.  He turned to alcohol as a way to forget his brother's death.  Had his brother not died, he would have completed his tour of military service.  The applicant has since quit drinking and turned his life around.  He has become an upstanding citizen.  He is married and has children.  He wants his discharge upgraded so that his children will be proud of him.

3.  The applicant provides a copy of his DD Form 214.

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.  A review of the applicant's military records revealed that the SSN recorded on his DD Form 214 is the same number recorded on his DA Form 20 (Enlisted Qualification Record) and that was routinely used throughout his period of active duty service.  The SSN he now claims to be correct was not found on any documents in his military files.

3.  On 9 October 1968, the applicant, at more than 20 years of age, was inducted into the Army of the United States.  He completed basic combat training at Fort Dix, New Jersey and was subsequently assigned to Aberdeen Proving Ground, Maryland for advanced individual training as an aircraft armament repairman (45J).

4.  On 27 August 1969, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 8 to 18 August 1969.

5.  On or about 29 October 1969, the applicant was AWOL.  He returned to military control on 17 November 1969.

6.  On 26 November 1969, he again went AWOL.  On 27 May 1970, the applicant was apprehended by civilian authorities and returned to military custody on or about 3 June 1970.

7.  On 9 June 1970, charges were preferred under the Uniform Code of Military Justice (UCMJ) for two specifications of AWOL from on or about 29 October to 17 November 1969; and from on or about 26 November 1969 to 27 May 1970.

8.  On 10 June 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

9.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

10.  On 18 June 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 258A (Undesirable Discharge Certificate).  On 18 June 1970, the applicant was discharged accordingly.  He had completed 1 year, 2 months, and 12 days of creditable active duty service and had accrued 208 days of lost time.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year and 6 months when terminated by apprehension.

13.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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 that his DD Form 214 should be corrected to show his correct social security number (SSN).  He also contends that his undesirable discharge should be upgraded to honorable because he has turned his life around and wants his children to be proud of him.

2.  The evidence of record clearly shows that the applicant enlisted in the Regular Army, served, and was discharged, all while using the SSN shown on his DD Form 214.  Furthermore, the applicant has not provided any documentary evidence showing that the SSN in his records was incorrect.

3.  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.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was more than 20 years of age and had satisfactorily completed basic training.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.  Furthermore, there is no documentary evidence showing that his brother's death had any bearing on his misconduct.

6.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of AWOL during his military service.

7.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His lengthy period of lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

8.  In view of the foregoing, there is no basis for granting the applicant's request.






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)                                         AR20110003108





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ABCMR Record of Proceedings (cont)                                         AR20110003108



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