IN THE CASE OF:	  

		BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110010358 


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:

* upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge
* correction of his social security number (SSN) on his DD Form 214 (Report of Separation from Active Duty) 

2.  He states he:

* went AWOL [absent without leave] due to family issues
* had to take care of his brothers and sisters and he was late coming back to muster
* immediately went to the local recruiter’s office and voluntarily turned himself in after he learned he was classified as AWOL
* was given the option to leave the service or go to jail in order to stay in the military
* opted to leave the military 
* recently found out that his SSN was assigned to another individual

3.  He provides his DD Form 214, his DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States), his discharge orders, his DA Form 2-1 (Personnel Qualification Record – Part II), and a letter from the Social Security Administration.


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 are not available to the Board.  On 1 June 2011, a request was submitted to the National Archives and Records Administration (NARA) for the applicant’s records; however, his records were signed out.  This case is being considered using the documents provided by the applicant.  

3.  His DD Form 4 shows he enlisted in the Regular Army (RA) on 4 November 1976 for a period of 4 years.

4.  His DA Form 2-1 shows in item 20 (Time Lost) that he was AWOL from 
14 to 31 March 1977 and from 22 May to 16 August 1977.

5.  His DD Form 214, DD Form 4, DA Form 2-1, and discharge orders all show the same SSN.

6.  His discharge packet is not available for review; however, his DD Form 214 shows he was discharged on 15 September 1977 with a DD Form 794A (UOTHC Certificate).  He completed 6 months and 27 days of creditable active service with 105 days of time lost due to AWOL.  A handwritten entry indicates he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.

7.  He provided a letter from the Social Security Administration which shows a different SSN than the SSN recorded on the documents from his military personnel record.

8.  There is no evidence which indicates he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

9.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s statements regarding his personal family problems are acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which it appears led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Therefore, the applicant is not entitled to a general discharge.

3.  For historical purposes, the Army has an interest in maintaining the integrity 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 have the SSN that he now uses recorded in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.

4.  The applicant is advised that a copy of this decisional document will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the SSN recorded in his military records and will satisfy his desire to have the SSN that he now uses documented in his OMPF.

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)                                         AR20110010358



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ABCMR Record of Proceedings (cont)                                         AR20110010358



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