IN THE CASE OF:	  

		BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20150002247 


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, in effect, an upgrade of his bad conduct discharge (BCD) and correction of his DD Form 214 (Report of Separation from Active Duty) to show his social security number (SSN) as "XXX-XX-X0XX" vice "XXX-XX-X4XX" and his home of record (HOR) as "324 1/2 E. 8th Street" vice "811 Mary Street."

2.  The applicant states an officer in his unit, who happened to also be gay, set him up for a court-martial because the applicant found a new lover and no longer wanted to have sex with the officer.  The officer vowed to get the applicant out of Germany any way possible, so he had one of his gay lovers say the applicant stole his heroin.  The applicant did not commit the offense for which he was court-martialed.  The applicant also states the SSN and street address listed as his HOR on his DD Form 214 are incorrect.  

3.  The applicant provides:

* self-authored statement
* issues worksheet
* an extract of his DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* Special Orders Number 203, dated 1 October 1974
* 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 enlisted in the Regular Army on 27 September 1972.  His DD Form 4 shows his SSN listed as "XXX-XX-X0XX" and his HOR listed as "811 Mary Street."

3.  His record contains a DD Form 398 (Statement of Personal History), dated 
27 February 1973 showing he listed his SSN as "XXX-XX-X0XX" and his permanent mailing address as "324 1/2 E. 8th Street."

4.  His DA Form 20 (Enlisted Qualification Record) shows his SSN listed as "XXX-XX-X0XX" and his HOR listed as "811 Mary Street."

5.  His record contains a statement acknowledging receipt of drug abuse training, dated 27 February 1973.

6.  His record contains two DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) showing:

	a.  On 13 March 1973, he accepted nonjudicial punishment (NJP) for falsifying a DD Form 689 (Individual Sick Slip) to read he had been ordered/directed to 24 hours of bedrest in an effort to escape duty.

	b.  On 13 April 1973, he accepted NJP for disobeying a lawful order of two separate noncommissioned officers (NCO) to prepare for duty on or about 7 April 1973, and for failing to go to his appointed place of duty at the prescribed time on or about 7 April 1973.  

7.  His record contains a DD Form 458 (Charge Sheet), dated 3 July 1973, which shows court-martial charges were preferred against him for having in his possession two pieces of cotton containing heroin residue.
8.  Special Court-Martial Order Number 96, issued by Headquarters, 8th Infantry Division, Germany on 9 November 1973, convicted him, pursuant to his guilty plea, of:

* having a metal spoon containing heroin residue in his possession
* having two pieces of cotton with heroin on them in his possession
* having a syringe needle in his possession
* by means of force, and by putting another in fear, stealing four packets of marijuana of some value from another Soldier
* being absent without leave (AWOL) from on or about 23 July 1973 to on or about 8 August 1973

His sentence was adjudged on 2 October 1973 and included a reduction to the rank/grade of private (PVT)/E-1, forfeiture of $200.00 of pay per month for 4 months, confinement at hard labor for 4 months, and a BCD.  

9.  Special Court Martial Order Number 573, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, on 12 September 1974, stated the sentence to a bad conduct discharge, forfeiture of $200.00 of pay per month for 4 months, confinement at hard labor for 4 months, and a reduction to PVT/E-1 was affirmed and would  be dully executed.

10.  His DD Form 214 shows he was discharged under the provisions Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2 (BCD), with the separation program designator (SPD) code "JJD," a character of service of under other than honorable conditions, and the issuance of a DD Form 259A.  Additionally, his DD Form 214 shows his SSN listed as "XXX-XX-X4XX" and his HOR listed as "811 Mary Street."

11.  Army Regulation 601-280 (Army Retention Program) prescribes the criteria for the Army retention program.  Table 11-1 of this regulation defines the HOR as the place recorded as the home of the individual when commissioned, appointed, enlisted, inducted, or ordered into the relevant tour of active duty.  The place recorded as the home of the individual when reinstated, reappointed, or reenlisted remains the same as that recorded when commissioned, appointed, enlisted, or inducted or ordered into the relevant tour of active duty unless there is a break in service of more than one full day.  Only if a break in service exceeds one full day can the home of record be changed by the member.

12.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  The 
DD Form 214 is prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Item 8c of the DD Form 214 shows the place of entry onto active duty and HOR at time of entry.  

13.  The Joint Federal Travel Regulation provides, in part, that the HOR is the place recorded as the home of the individual at the time of enlistment or induction.  There is no authority to change the HOR as officially recorded at time of entry into the military service.  However, there is authority to correct a HOR if erroneously entered on the records at that time, and then only for travel and transportation purposes.  Correction of the HOR must be based on evidence that a bona fide error was made and the HOR as corrected must have been the actual home of the individual at the time of entry into the relevant period of service.

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

	a.  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.

	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.

	c.  Chapter 11, in effect at the time, prescribes the policies and procedures for separating members with a dishonorable discharge or a BCD.  It stipulates that a Soldier would be given a BCD pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 4, DD Form 398, and DA Form 2-1 all show his SSN listed as "XXX-XX-X0XX."  It appears an error occurred during the preparation of his DD Form 214, which resulted in his SSN being incorrectly entered on that form as "XXX-XX-X4XX".  

2.  By law and regulation, the HOR is the place recorded as the home of the individual at the time of their enlistment or induction, appointment, or entry on active duty, and there is no authority to change the HOR officially recorded at the time of entry into military service unless it is based on evidence that a bona fide error was made.

	a.  The evidence of record shows, at the time of his enlistment on 
27 September 1972, his DD Form 4 recorded his HOR as "811 Mary Street." 

	b.  Five months later, on 27 February 1973, he completed a DD Form 398 and listed his permanent mailing address as "324 1/2 E. 8th Street."

	c.  A HOR and permanent mailing address are not the same.  The HOR is the address at which a Soldier resides at the time of enlistment and a permanent mailing address may be anywhere they move subsequent to that enlistment.  

3.  The evidence of record shows the applicant was convicted by a special court martial of several drug-related charges and AWOL.  His trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations.

4.  He provided no evidence to show his discharge or the court's decision to find him guilty is unjust or as a result of improper actions.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided evidence or argument to show that clemency is warranted.   

5.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.


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 correcting the SSN listed on his DD Form 214 to reflect the SSN listed on his DD Form 4.    

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 changing the HOR listed on his DD Form 214 or upgrading his BCD.



      __________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)                                         AR20150002247





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ABCMR Record of Proceedings (cont)                                         AR20150002247



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