IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110014459 


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 Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his social security number (SSN) as XX8-XX-XXXX.  Additionally, he requests upgrade of his under other than honorable conditions discharge to honorable.  

2.  He states that he believes his character of service, while on active duty, was honorable.

3.  He provides two DD Forms 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.  The applicant enlisted in the Regular Army on 28 January 1969.  He served
9 months and 15 days on active duty and was honorably discharged on             12 November 1969 for immediate reenlistment the following day.  He served in Vietnam from 2 July 1969 to 26 December 1969. 

3.  Item 3 (SSN) of his 12 November 1969 and 9 February 1971 DD Forms 214 shows his SSN as XX0-XX-XXXX.

4.  His enlistment contract, contained in his military personnel records, show a pen and ink correction of his SSN from XX0-XX-XXXX to XX8-XX-XXXX.  All the documents containing an SSN in his military personnel records, including his
DA Form 20 (Enlisted Qualification Record), DD Form 398 (Statement of Personal History), and various orders, show his SSN as XX8-XX-XXXX.

5.  His social security card shows his SSN as XX8-XX-XXX.

6.  On 8 January 1971, charges were preferred against him for being absent without leave from 26 December 1969 to 18 January 1970 and 19 January 1970 to 8 January 1971.

7.  On 8 January 1971, he consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

8.  In requesting a chapter 10 discharge, he acknowledged he was making the request of his own free will, that he was afforded the opportunity to speak with counsel, that he understood he may be furnished an Undesirable Discharge Certificate under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration (VA) benefits, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  The applicant elected not to submit a statement in his behalf.

9.  On 29 January 1971, the appropriate authority approved his request for discharge and directed the issuance of an undesirable discharge.

10.  On 9 February 1971, he was discharged accordingly.  His DD Form 214 shows he was discharged under conditions other than honorable and issued an Undesirable Discharge Certificate.  It also shows he completed 11 months and 25 days of total active service with over 1 year listed as lost time.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be directed for an individual who was discharged for the good of the service.

   b.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  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.  
   
DISCUSSION AND CONCLUSIONS:

1.  It appears that an error occurred in the preparation of the applicant's 
DD Forms 214 since all the documents in his military personnel record show his SSN as XX8-XX-XXXX.  Additionally, his social security card verifies his correct
SSN.  Therefore, he is entitled to correction of his 12 November 1969 and 
9 February 1971 DD Forms 214 to show his SSN as XX8-XX-XXXX.

2.  The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows he voluntarily requested separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial.

3.  His record of service included over 1 year of lost time.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

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 deleting the SSN in item 3 of his 12 November 1969 and 9 February 1971 
DD Forms 214 and adding SSN XX8-XX-XXXX as shown on his social security card.

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 upgrading his discharge to honorable. 



      _______ _   __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)                                         AR20110014459





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ABCMR Record of Proceedings (cont)                                         AR20110014459



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