IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110024853 


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, the widow of a deceased former service member (FSM), requests correction of the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show:

* his correct social security number (SSN)
* he was issued a general discharge

2.  The applicant states, in effect, the FSM did not realize his SSN was in error until he went to a County Veteran's Affairs Office to discuss a claim for service-connected disability.  The FSM served in Vietnam between 1968 and 1969 
(11 months) and he was exposed to Agent Orange.  The applicant is making this request so that she may apply for dependency and indemnity compensation and death pension benefits based on the FSM's service in Vietnam.  

3.  She provides:

* the FSM's Certificate of Death
* a previously-submitted DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* letters written by the applicant, the FSM, and Ms. "C," a friend of the FSM
* the FSM's social security card
* correspondence from the Social Security Administration
* the FSM's DD Forms 214
* a letter the applicant received from the Army Board for Correction of Military Records (ABCMR)
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 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.  On 9 August 1967, the FSM was inducted into the Army of the United States.  

3.  On 17 August 1967, the FSM completed a DD Form 398 (Statement of Personal History).  Item 13 (SSN) lists "XXX-88-XXXX" as his SSN.  All of the documents in the available record list this SSN.  

4.  On 9 April 1968, he was honorably discharged for immediate enlistment.  The DD Form 214 he was issued lists his SSN as "XXX-88-XXXX."

5.  On 10 April 1968, he enlisted in the Regular Army (RA) for a period of 
3 years.

6.  On 2 October 1968, Headquarters, Special Processing Battalion (Provisional), Fort Meade, MD, issued Special Court-Martial Order Number 1003, which shows he was found guilty of being absent without leave (AWOL) from 15 May to 14 August 1968.

7.  He arrived in Vietnam around December 1968.  On 7 July 1969, while serving in Vietnam, he requested a 6-month extension of his overseas tour and 30 days of special leave in connection with his extension.  His request was approved.  

8.  A DA Form 188 (Extract Copy of Morning Report) shows:

* on 26 August 1969, his status changed from duty to special leave
* on 13 October 1969, his status changed from special leave to AWOL
* on 28 November 1969, he was dropped from Army rolls

9.  The charge sheet is not available.

10.  On 2 February 1970, he was advised by counsel of the basis for a contemplated trial by court-martial which could lead to a bad conduct or dishonorable discharge, the effects of requesting discharge for the good of the service in lieu of trial by court-martial, and of the rights available to him.  

11.  After consulting with counsel, he voluntarily requested discharge for the good of the service in-lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his voluntary request for discharge he acknowledged he understood that if his request was accepted he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that as a result of the issuance of such a discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life. 

12.  On 24 February 1970, the separation authority approved the FSM's request and directed that he receive an Undesirable Discharge Certificate.  On 
26 February 1970, he was discharged accordingly.  The DD Form 214 issued at that time shows he completed 2 years and 13 days of total active service with 184 days of time lost during the periods 15 May through 14 August 1968 and 
27 October 1969 through 26 January 1970.  The DD Form 214 he was issued lists his SSN as "XXX-88-XXXX."

13.  The applicant provides three letters written by the applicant, the FSM, and a friend of the FSM.  All three are dated 1 November 2009.

	a.  The FSM stated he was homeless and living in the streets at the age 
of 14.  His mother had physically and mentally abused him for as long as he could remember and the men in her life were as abusive to him as she was.  He was eventually taken in by a kind couple and lived and worked with them.  He states he was drafted in 1967 at age 18 and subsequently stationed in Germany and Vietnam.  He was nervous, but thought he could handle it.  He soon found out he was wrong, in spite of the hard life he had he was unprepared for the death and bloodshed he would face.  He dreaded the thought of returning from leave.  He stated he saw his sergeant "get blown out of his own shoes," which was when he knew he had had enough.  He turned to alcohol for comfort.  He later met the applicant, and he chose to "stop running."  

	b.  The applicant stated she met the FSM in 1978 and he was an alcoholic without much to live for.  He chose her and her children over "the bottle" and he became a devoted husband and father.  He had been sober since 1980 and he was "a true blessing" to her and everyone he came in contact with.

	c.  Ms. "C" stated she and her husband, who is now deceased, met the FSM standing outside of a bar when he was 14 years of age.  He had just been beaten up by his mother's boyfriend and they took him in as their own.  Her husband put the FSM to work in his business and he became a responsible young man.  His life changed when he was drafted at the age of 18.  When he was released from the Army he was not the same person.  He had a bad attitude about himself and his life and he stayed drunk all the time.  He finally met the applicant and his life turned around.  

13.  The applicant also provides:

* the FSM's social security card and correspondence from the Social Security Administration showing his SSN is "XXX-44-XXXX"  
* a Certificate of Death showing the FSM died on 19 May 2011

14.  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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

	b.  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.  The evidence of record shows the FSM entered military service using SSN XXX-88-XXXX and this was the only SSN he used during his Army service.  

	a.  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 record the requested SSN in the FSM’s military records, there is not a sufficiently compelling reason for compromising the integrity of the Army's records at this late date.

	b.  The applicant is advised that a copy of this decisional document will be filed in the FSM's official military personnel file.  This should serve to clarify any questions or confusion in regard to the SSN recorded in his military record and to satisfy the applicant's desire to have the requested SSN documented in the FSM's military record.

2.  The evidence of record does not support the applicant's request for an upgrade of the FSM's discharge.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows the FSM voluntarily extended his tour in Vietnam and he received special leave in conjunction with his extension.  He failed to return from special leave, which put him in an AWOL status, an offense for which he could have been tried by court-martial and punished with a punitive discharge.  All requirements of law and regulation related to his voluntary request for discharge were met, and his rights were fully protected throughout the separation process.  

4.  After the FSM enlisted in the RA and before he went to Vietnam, he was convicted by a special court-martial of being AWOL.  Subsequent to this conviction, he went AWOL from his unit in Vietnam.  Based on this record of indiscipline, his RA service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge.

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)                                         AR20110024853



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110024853



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1