IN THE CASE OF:	  

		BOARD DATE:  31 January 2012

		DOCKET NUMBER:  AR20110015299 


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 request correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to change:

* Item 3 (Social Security Number (SSN)) to show the sixth digit of his social security number (SSN) as "8" not "0"
* Item 11a (Type of Transfer or Discharge) to read "Discharge" instead of "Retired"
* Item 11c (Reason and Authority) from "Title 10 USC Section 1201, SPN 271, Placed on Permanent Disability Retired List" to a reason and authority that shows he was discharged

2.  The applicant states his SSN is incorrect on his DD Form 214 and that he did not retire, he served for one year from 5 October 1967 to 29 November 1968.  He further states that he was never placed on the permanent disability retired list, he was discharged.

3.  The applicant provides his DD Form 214 and a letter from the Department of Veteran Affairs.

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.  Prior to induction into the Army of the United States (AUS), the applicant completed a DD Form 398 (Statement of Personal History) wherein he listed "8" as the sixth digit of his SSN.

3.  He was inducted into the AUS on 5 October 1967.  He held the military occupational specialty 11B (Light Weapons Infantryman).  The highest grade/rank he attained was private first class/E-3.

4.  His DA Form 20 (Enlisted Qualification Record) and all other documents in his records listing his SSN show a sixth digit of "0."

5.  His DA Form 20 (shows he was assigned to Company D, 3rd Battalion (Airborne), 187th Infantry, in Vietnam from 2 April 1968 until 26 July 1968.

6.  Item 40 (Wounds) of his DA Form 20 shows he was wounded in action on 
23 July 1968.  He received multiple fragment wounds to his right arm, neck, and face, and an amputation of his lower right leg and right testicle.

7.  His records contain a DA Form 199 (Physical Evaluation Board Proceedings (PEB)), dated 5 November 1968.  This form shows that the board members awarded him a combined disability rating of 80 percent (%) and recommended that he be permanently retired from the service.

8.  His records contain an AGPZ Form 977 (Data for Retired Pay).  This form shows in:

* Item 15 (Type of Retirement and Finance Allotment Code Number) he was identified as having a permanent disability
* Item 17 (Date Placed on the Retired List) shows he was to be placed on the retired list on 30 November 1968
* Item 26 (Percentage of Disability) is listed as 80%

9.  Special Orders Number 228, dated 21 November 1968, shows he was determined to be permanently unfit for duty by reasons of physical disability and was ordered to be placed on the retired list on 30 November 1968 with a disability rating of 80%.

10.  His DD Form 214 shows he was retired from the Army, on 29 November 1968, in the rank/grade of private first class/E-3, with an honorable character of service and placed on the permanent disability retired list.  He completed 1 year, 1 month, and 5 days of creditable active service.  Item 3 of his DD Form 214 lists the sixth digit his SSN as "0."

11.  Army Regulation 635-40 (Personnel Separations Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  This regulation states in: 

	a.  Paragraph 4-26 that if the PEB finds that a member is physically unfit for military service, the board must then determine whether the member is eligible for physical disability retirement or severance pay. 

	b.  Paragraph 4-30 that the PEB will determine for each defect listed on DA Form 199 whether the defect is "permanent" and record its recommended finding for each.   A disability will be considered "permanent" if, based upon accepted medical principles, the defect has stabilized to the extent that the compensable percentage rating, with reasonable expectation, will remain unchanged during the 5-year statutory period; or if the compensable percentage rating is 80 percent or more and there is reasonable expectation that it will not reduce below 80 percent during the 5-year statutory period.  

	c.  Paragraph 5-8 that the Adjutant General will take action for the Secretary of the Army to dispose of the case by publication of Department of the Army orders or the issuance of appropriate instructions to subordinate headquarters.  Based upon review in Headquarters, Department of the Army, of the findings and recommendations of the physical evaluation board are t, The Adjutant General will take final action for the disposition of the member, by direction of the Secretary of the Army by issuing direct permanent retirement for physical disability under section 1201 title 10, U.S. Code for Soldiers who meet the appropriate criteria. 

12.  Title 10, United States Code, Section 1201 states that upon a determination that a member is unfit to perform the duties of the member’s office, grade, or rank because of physical disability incurred while entitled to basic pay, the Secretary of the members service may retire the member, with retired pay, if the Secretary also makes the determinations with respect to the member and that disability based upon accepted medical principles, the disability is of a permanent nature and stable; the disability is not the result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination; and the disability was not noted at the time of the member’s entrance on active duty, the disability is the proximate result of performing active duty; or the disability was incurred in line of duty in time of war or national emergency.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 398 shows his SSN with "8" as the sixth digit of his SSN.  However, when his DA Form 20 was created, it listed his SSN with the number "0" in the sixth digit.  Other documents in his service record also listed his SSN with the number 0" in the sixth digit. 

2.  For historical purposes, the U.S. Army has an interest in maintaining the integrity of its records.  In this regard, the information contained therein should reflect the conditions and circumstances that existed at the time the records were created and under which the military service was performed.  However, having listed the correct SSN at the time of induction, his DD Form 214 should be corrected to show the same SSN at the time of separation.  He should also be issued a replacement discharge certificate with the correct SSN.

3.  The applicant was retired because the PEB awarded him a combined disability rating of over 30%.  In addition, his disability was ruled to be of a permanent nature due to the amputations he received.  His DD Form 214; therefore, correctly shows the entry "Retired" in item 11a and the entry "Title 10 USC Section 1201, SPN 271, Placed on Permanent Disability Retired List" in item 11c.

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 changing the SSN in item 3 of his DD Form 214 as reflected in his DD Form 398. 

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 items 11a and 11c of his 
DD Form 214.



      __________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)                                         AR20110015299





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ABCMR Record of Proceedings (cont)                                         AR20110015299



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