IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150009764 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150009764 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150009764 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: a. Upgrade of his general discharge under honorable conditions to honorable. b. Change the social security number (SSN) on his DD Form 214 (Report of Separation from Active Duty) for the period ending 4 June 1975 from XXX-XX- to XXX-XX-. 2. The applicant states, in effect: * he was asked if he wanted to get out of the Army; he was young and did not understand the full implications of the question * he was told he would get all of his benefits; he believes the person (his first sergeant) who told him this did not like him * he feels he should not have been asked if he wanted to get out of the Army; he had only 5 months left to serve * he contends he was talked into deciding to get out of the Army * regarding his SSN, what is listed is incorrect 3. The applicant provides a DD Form 214 for the period ending 4 June 1975. 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 20 September 1973 for 3 years at 18 years of age. His DD Form 4 (Enlistment Contract - Armed Forces of the United States) lists his SSN as XXX-XX-. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice nine times for the following misconduct: * 6 December 1973 - failing to go at the time prescribed to his appointed place of duty (failure to repair (FTR)) * 10 June 1974 - sleeping at his assigned place of duty * 27 June 1974 - FTR * 18 October 1974 - two instances of FTR * 24 January 1975 - FTR * 10 March 1975 - FTR * 22 April 1975 - FTR * 25 April 1975 - FTR * 30 April 1975 - FTR on two separate occasions 4. On 18 April 1975, his commander notified him in writing of his intent to separate him under the provisions of chapter 13 (Separation for Unfitness or Unsuitability), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel). The basis for his action was the applicant's failure to respond to counseling, the change of his job, and to the disciplinary actions taken with regard to his overall duty performance and personal appearance. 5. On 23 April 1975, his battalion commander approved his bar to reenlistment. 6. On 5 May 1975, he acknowledged receipt of his commander's notification, and consulted with legal counsel. Based on that consultation, he affirmed in writing that he: * had been advised of the basis of the contemplated action to separate him for unsuitability * waived consideration of his case by a board of officers * waived his right to a personal appearance before a board of officers * waived his right to representation by counsel * elected not to submit statements in his own behalf * understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * understood that, in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life 7. On 6 May 1975, his commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 because of unsuitability. 8. On 22 May 1975, the separation approval authority directed the applicant be discharged by reason of unsuitability and issued a General Discharge Certificate. On 4 June 1975, he was discharged accordingly. 9. His DD Form 214 shows he completed 1 year, 8 months, and 15 days of net active creditable service. The authority and reason is listed as paragraph 13-5b (3) (Apathy (lack of appropriate interest), Defective Attitudes, and Inability to Expend Effort Constructively). His character of service is under honorable conditions. His DD Form 214 further shows he was awarded or authorized the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 10. A review of his available service record reveals all documents, to include his initial enlistment contract and his DD Form 398 (Statement of Personal History), list his SSN as XXX-XX-. No documents show the SSN of XXX-XX-. 11. There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations. REFERENCES: Army Regulation 635-200 prescribes policies and procedures for enlisted separations. a. Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unsuitability, and listed five categories, which included apathy, as the basis for separation. The regulation stated either an honorable or a general discharge could be issued, as warranted by his military record. b. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits as 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 states 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: 1. Concerning his request to upgrade his general discharge, the applicant's records suggest his commander determined he would not develop sufficiently to become a satisfactory Soldier. Accordingly, his chain of command initiated separation action against him. a. The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights. The discharge proceedings were conducted in accordance with applicable law and regulations at the time. b. Based on his extensive record of indiscipline, as evidenced by his nine NJPs and his bar to reenlistment, the applicant's service does not appear to have met the standards of acceptable conduct and performance of duty for Army personnel. 2. Regarding the correction of his SSN, the applicant contends the SSN on his DD Form 214 is wrong, and he provides what he asserts is the correct SSN. The evidence of record, however, confirms the SSN he states is correct was never used at any point during his military service. 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. b. There is a reluctance to recommend that those records be changed when there is no clear and compelling evidence of a material error or injustice. While it is understandable that the applicant desires to record in his military records an SSN that he asserts is correct, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date. c. The applicant is advised that a copy of this decisional document will be filed in his Official Military Personnel File (OMPF). This should serve to clarify any questions or confusion in regard to the difference in the SSN recorded in his military record and to satisfy his desire to have his correct SSN documented in his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009764 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009764 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2