IN THE CASE OF:	  

		BOARD DATE:  31 October 2013

		DOCKET NUMBER:  AR20130005539 


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 item 3 (Social Security Number (SSN)) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) from "xxx-xx-5x61" to "xxx-xx-1x05."  The applicant further requests that his character of service be changed from under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states the SSN listed on his DD Form 214 is incorrect.  He further states he was told that after 9 years his discharge would be upgraded.

3.  The applicant provides a copy of his DD Form 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 was inducted into the Army of the United States on 20 January 1971. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11E (Armor Crewman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  The record contains a DD Form 398 (Statement of Personal History) prepared by the applicant during the induction process.  This document lists his SSN as "xxx-xx-1x05" in item 13 (Employment).

4.  The DA Form 20 (Enlisted Qualification Record), prepared on him on 
21 January 1971, lists the SSN "xxx-xx-1x05" in item 1 (Name and Service Number).

5.  The DD Form 47 (Record of Induction), dated 21 January 1971, lists the SSN "xxx-xx-1x05" in item 2 (Service Number).

6.  The DD Form 214 issued to the applicant upon separation on 26 June 1972 lists his SSN as "xxx-xx-5x61" in item 3 (SSN).

7.  The applicant provides his social security card listing "xxx-xx-1x05" as his SSN.

8.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 12 April 1971 for being absent from his unit
* 22 July 1971 for being absent from his unit

9.  The applicant’s DA Form 20 shows he was absent without leave (AWOL) for the following periods:

* 31 August through 27 September 1971
* 28 September 71 through 29 May 1972

10.  On 9 June 1972, charges were preferred against the applicant for being AWOL from 31 August 1971 through 30 May 1972. 


11.  On 9 June 1972, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge UOTHC, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.

12.  On 20 June 1972, the separation authority approved the applicant's request for discharge and directed that he receive a discharge UOTHC.  On 26 June 1972, the applicant was discharged accordingly.  He completed 7 months and 
29 day of creditable active service with 278 days of time lost.

13.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. 

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

	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.  The applicant’s request for correction of the SSN on his DD Form 214 has been carefully considered and found to have merit.


2.  The evidence of record confirms the applicant was inducted and he served under SSN "xxx-xx-1x05" as listed on his DD Form 398, DA Form 20, and the majority of documents and orders in his records.  As a result, it appears the SSN entry on the applicant's DD Form 214 was the result of an administrative error.

3.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support his request.

4.  The applicant's record shows he was charged with the commission of an offense punishable under the 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.  

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The evidence of record shows he consulted with counsel.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  The applicant's record of service shows he was AWOL for 278 days.  Based on this record of indiscipline, the applicant's service did not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his UOTHC discharge to either honorable or general.

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 by correcting his
DD Form 214, item 3 with "xxx-xx-1x05."


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 upgrade to his 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)                                         AR20130005539



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ABCMR Record of Proceedings (cont)                                         AR20130005539



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