IN THE CASE OF:	  

		BOARD DATE:	  7 January 2015

		DOCKET NUMBER:  AR20140008114 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  He also requests, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the social security number (SSN) as that shown on the social security card he provides and his birth year as 1948 instead of 1947.

3.  The applicant states he was 16 years old at the time of his recruitment in Puerto Rico.  He asked questions in Spanish and the next thing he knew he was in basic training at Fort Jackson, SC.  Not understanding the English language and totally confused, he was told in Spanish to return to Puerto Rico because he could not keep up due to the inability to speak and understand English.  The next thing he knew the Federal Bureau of Investigation arrested him for being absent without leave (AWOL).  He spent 9 months in confinement and was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He further states the recruiter lied about his age on his enlistment documentation.  The variations of the SSN used in his record were never provided by him. 

4.  The applicant provides copies of:

* social security card
* Nevada driver license
* passport
* birth certificate
* DD Form 214 
* hand-written personal statement
* rehearing of court-martial charges
* general court-martial orders
* DA Form 20 (Enlisted Qualification Record), page 1
* DA Form 2658 (Health Record – Abstract of Service)

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.  On 22 November 1965, he enlisted in the Regular Army.  His DD Form 4 (Enlistment Record – Armed Forces of the United States) and all other documents in his record containing his birth year show it as 1947.  He did not complete initial entry training.

3.  On 12 February 1970, Headquarters, U.S. Army Training Center, Infantry and Fort Dix, NJ, issued General Court-Martial Order Number 13.  This order shows that pursuant to his guilty plea he was convicted by a general court-martial on 12 November 1969 of being AWOL from:

* on or about 30 December 1965 through on or about 9 February 1967
* on or about 12 February 1967 until his apprehension on or about 11 June 1969

4.  He was sentenced to confinement at hard labor for 6 months to be discharged with a bad conduct discharge (BCD).  These orders show his SSN as "582-XX-XXXX."

5.  On 15 April 1970, the U.S. Army Court of Military Review set aside the findings of guilty and the sentence and authorized a rehearing due to specified failures of the presiding military judge with respect to the applicant's rights.  The rehearing of the case could not be held until the applicant had been returned to military control. 

6.  On 4 August 1972, a Judge Advocate General (JAG) officer indicated the applicant's commanding officer had recommended approval of the applicant's request for a discharge for the good of the service.  He indicated his recommendation was disapproval of the request.  He further indicated the applicant was pending a rehearing for desertion and AWOL at general court-martial level in addition to charges for 775 days of AWOL.

7.  On 24 August 1972, the applicant consulted with counsel who advised him of the basis for his contemplated trial by court-martial for offenses punishable by a bad conduct or dishonorable discharge; the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel); and the nature and effects of an undesirable or general discharge.

8.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.

	a.  He acknowledged that:

* he had not been subjected to coercion with respect to his request for discharge
* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	b.  He elected not to submit a statement in his own behalf.  He waived his rights.  

9.  On 28 August 1972, court-martial charges were preferred against the applicant for:

* being AWOL from on or about 13 April 1970 until on or about 27 April 1970
* being AWOL from on or about 27 April 1970 until on or about 7 June 1972
10.  A DD Form 457 (Investigation of Officer's Report), dated 28 August 1972, shows an investigating JAG officer stated the substance of the applicant's unsworn statement was as follows:  "After I was let out of confinement I was sent to the PCF.  On 13 April 1970, I was sent to the JAG to see if I could get a 
30-day pass while I waited on my BCD.  I got my pass.  I called up Fort Dix after the pass was up.  They told me I was AWOL, so I stayed AWOL.  I have been in pre-trial confinement since 7 June 1972.  My wife and two kids had to go on welfare because of the length of time I have been here.  I went AWOL at the beginning because of language difficulties and financial difficulties.  I had five brothers and sisters to support, plus my mother.  My step-father deserted us.  I went to the Red Cross three times.  They didn't help.  I have been in pre-trial confinement now for 3 months.  On the last charge I was in pre-trial confinement for 5 months.  Then I served my sentence of 5 months.  That I don't understand.  I pleaded guilty and served my sentence and now I may have to serve another sentence for the same thing."

11.  The DD Form 457 shows the investigating officer recommended that the applicant be given a "206 Discharge" because there may be some difficulty in proving the inception date of the 13 April 1970 AWOL and the inception date of the 27 April 1970 AWOL.  The unsworn testimony of the accused raised, at least, a defense of mistake of fact.  The applicant was under the impression that he was on pass waiting to receive his discharge.  His BCD was overturned on 15 April 1970, a fact that he could not have been aware of on 13 April 1970.

12.  His DA Form 20 (Enlisted Qualification Record) shows the following periods of AWOL:  

* 30 December 1965 through 2 February 1967 (398 days)
* 12 February 1967 through 10 June 1969 (848 days)
* 11 June 1969 through 12 April 1970 (305 days)
* 13 April 1970 through 26 April 1970 (13 days)
* 27 April 1970 through 7 June 1970 (42 days)
* 17 June 1970 through 6 June 1972 (720 days)

13.  On 11 September 1972, an acting assistant adjutant general, Headquarters, U.S. Army Training Center, Infantry and Fort Dix, NJ, stated in an endorsement document that the commanding general had on 8 September 1972 accepted the applicant's application for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.

14.  On 31 October 1972, he was discharged from active duty in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  The DD Form 214 he was issued at that time shows:
* his SSN as 145-XX-XXXX
* his birth year as 1947
* he completed 6 months and 20 days of net creditable active military service, with 2,326 days of time lost under Title 10, U.S. Code, section 972
* he was discharged under the provisions of Army Regulation 635-200, chapter 10
* he was issued a separation program number of 246, denoting he was discharged for the good of the service
* he received an Undesirable Discharge Certificate

15.  His discharge orders and his personnel records jacket show the same SSN as his DD Form 214.

16.  An undated memorandum, subject:  Identity of [Applicant], states that several different SSN's appear in various documents as follows:

* 145-XX-XXXX - on charges and DA Form 201 File Records Jacket
* 582-XX-XXX0 - Request for Chapter 10 discharge and request for delay in proceedings
* 582-XX-XXX3 - General Court-Martial Order Number 13 

It stated that examination of the request for discharge, enlistment contract, and DA Form 20 would indicate the same individual appears to have signed all of them.  Thus it would appear possible to prove that the records were those of the applicant.

17.  The social security card he submits shows his SSN is 062-XX-XXXX.

18.  He submits a copy of his driver's license, birth certificate, and passport showing his birth year as 1948.

19.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
  
20.  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 VA 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 to 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.  The applicant's contentions and explanation of the events that occurred at the time are noted; however, the evidence of record does not support his request for an upgrade of his undesirable discharge.

2.  Even if his birth year of 1948 is accepted, his age at time of enlistment would have been 17.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

3.  He was convicted by a general court-martial of being AWOL from on or about 30 December 1965 through on or about 9 February 1967 and on or about 12 February 1967 until his apprehension on or about 11 June 1969.  The conviction was set aside due to errors by the military judge and a rehearing could not be completed due to the applicant's absence.  However, evidence shows court-martial charges were preferred against him for being AWOL for another period of more than 2 years, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  To be discharged under the provisions of Army Regulation 635-200, chapter 10, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  

5.  His record shows he was well advised and fully aware of the consequences of his decisions.  There is no evidence to show he did not understand what he was signing.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

6.  His record shows he had a total of 2,326 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the applicant a general discharge or an honorable discharge.

7.  With respect to his request for correction of the SSN on his DD Form 214, his records contain three different SSN's, none of which is similar to the SSN on the social security card he provides.  As such, there is an insufficient evidentiary basis for changing the SSN shown on his DD Form 214 at this time.

8.  His contention that the recruiter entered the incorrect birth year on his enlistment documentation may be plausible.  However, he would surely have been aware of that action since he would have otherwise needed parental consent to enlist at the time.  That same birth year was used throughout his records.

	a.  For historical purposes, the Army has an interest in maintaining the accuracy 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.  There is a reluctance to recommend that those records be changed.  While it is understandable that the applicant desires to have his military records changed to reflect the birth year on the documents he provided, 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 his official records.  This should serve to clarify any questions or confusion regarding the difference in the birth year recorded in his military records and that which he currently uses.

9.  In view of the foregoing, there is an insufficient basis for granting the applicant the requested relief.

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)                                         AR20140008114





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ABCMR Record of Proceedings (cont)                                         AR20140008114



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