IN THE CASE OF:	  

		BOARD DATE:	    30 August 2012

		DOCKET NUMBER:  AR20120003831 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 17 March 1971 be corrected to reflect his correct Social Security Number (SSN) and the correct dates of his service.  He also requests that his undesirable discharge be upgraded.

2.  The applicant states his DD Form 214 has his SSN and the dates of his service incorrectly reflected and he desires his discharge to be upgraded to allow him to apply for benefits. 

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.  The applicant was inducted on 7 November 1967.  At the time of his induction his records were prepared to reflect a SSN ending with the numbers “9036.”  He was transferred to Fort Bliss, Texas to undergo his basic training.  On                14 November 1967, he was honorably discharged for the purpose of enlisting in the Regular Army,

3.  On 15 November 1967, he enlisted in the Regular Army for a period of           3 years and training as an aircraft rotor and propeller repairman.  He completed his basic training and was transferred to Fort Eustis, Virginia to undergo his advanced individual training.

4.  On 20 February 1968, he waived his enlistment contract and was reassigned on 2 April 1968 for training as a cook.  

5.  On 12 June 1968, he went absent without leave (AWOL) and remained absent until he was arrested by civil authorities on 30 June 1968.  The applicant was convicted by civil authorities in El Paso, Texas of transporting a stolen vehicle across state lines and placed on 5 years probation on 5 September 1968.  He was returned to military control at Fort Carson, Colorado on 7 September 1968.

6.  The applicant again went AWOL on 11 December 1968 and remained absent in desertion until he was returned to military control on 25 May 1969.  He was convicted by a special court-martial on 1 July 1969 of being AWOL from            11 December 1968 to 24 May 1969.  He was sentenced to confinement at hard labor for 3 months (suspended until 30 September 1969).

7.  He again went AWOL on 16 October 1969 and remained absent in desertion until he was returned to military control at Fort Lewis, Washington on 8 December 1970.

8.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Veterans Administration in Waco, Texas on 2 September 1977.  However, the available records show that on 11 February 1971 the applicant’s commander notified him that he was initiating action to discharge him from the service under the 


provisions of Army Regulation 635-206 due to conviction by civil authorities (applicant had broken his parole).

9.  On 16 February 1971, after consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

10.  On 17 March 1971 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-206 due to conviction by civil authorities.  He had served 3 months and 13 days of active service and had 682 days of lost time due to AWOL and confinement.

11.  His DD Form 214 issued at the time of his discharge shows in block 3 that the last three digits (vice four digits) of his SSN are “906” instead of “9036.”  In block 17c it shows his date of entry as 15 November 1961 instead of 15 November 1967. 

12.  On 10 February 1975, while incarcerated in a Federal Correctional Institution in Anthony, Texas, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that his discharge should be upgraded because he was not able to adjust to military life and he had family problems at home at the time and he now desired to attend medical school in order to help his fellow citizens.  The ADRB denied his appeal on 10 June 1975. 

13.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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.

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.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his SSN (block 3) and the date of his entry on active duty (block 17c) on his DD Form 214 are incorrect has been noted and found to have merit.  His SSN should end with the digits “9036” and his date of entry was 15 November 1967.  Accordingly, his DD Form 214 should be corrected at this time.

2.  However, the applicant‘s contention that his undesirable discharge should be upgraded has been noted and appears to lack merit.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

4.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

5.  The applicant's overall record of service has been considered.  However, given the repeated nature and excessive length of his absences and the seriousness of his offenses, his short record of service alone is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply does not rise to the level of even 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 amending his last DD Form 214:

* to show in block 3 that the last four digits of his SSN are “9036”
* Deleting the entry “15 Nov 61” in block 17c 
* Adding the entry “15 Nov 67” to block 17c 

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 undesirable discharge.  




      ___________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)                                         AR20120003831





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ABCMR Record of Proceedings (cont)                                         AR20120003831



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