BOARD DATE: 3 May 2018 DOCKET NUMBER: AR20160008394 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 May 2018 DOCKET NUMBER: AR20160008394 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 an upgrade of his under other than honorable conditions discharge. He also request, in effect, correction of his social security number (SSN) from "xxx-xx-xxxx" to "xxx-xx-xxxx." 2. The applicant states he wishes to clear his name. Due to his past youthful indiscretions and lack of maturity, over 40 years ago, he believes his actions should not have amounted to a discharge under other than honorable conditions. It also appears when the Army Review Boards Agency (ARBA) requested his records from the National Personnel Records Center (NPRC); ARBA may have listed the wrong SSN. He requests the correct file be obtained from the NPRC, under the correct SSN, to help receive the proper information to upgrade his discharge. 3. The applicant did not provide any evidence. 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, and 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's records show he was born in May and enlisted in the Regular Army at 18 years of age on 14 May 1974. His DD Form 4 (Enlistment Contract) listed his SSN as "xxx-xx-xxxx." 3. He completed basic combat and advanced individual training and he held military occupational specialty 76Y (Unit Supply Specialist). His DA Form 2-1 (Personnel Qualification Record) that was created upon his entry on active duty listed his SSN as "xxx-xx-xxxx." 4. He served in Germany, in a temporary duty status, from 30 April 1975 to around 26 October 1975. He was assigned to Company B, 1st Battalion, 41st Infantry. All documents in his service record show his SSN as "xxx-xx-xxxx." 5. While assigned to that unit, in Germany and at Fort Hood, TX, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on multiple occasions for a variety of reasons indicated below. He was 18 to 20 years of age during this misconduct: * 27 November 1974, failing to go at the time prescribed to his appointed place of duty (arms room) * 6 March 1975, willfully disobeying lawful orders on four separate occasions from commissioned or non-commissioned officers * 22 April 1975, failing to go at the time prescribed to his appointed place of duty (Company area) * 6 February 1976, failing to go at the time prescribed to his appointed place of duty (Motor pool) * 16 March 1976, failing to go at the time prescribed to his appointed place of duty (Extra duty) * 1 June 1976, being absent without leave (AWOL) from 5 to 11 May 1976 * 23 June 1976, dereliction of duty (being found asleep on duty) 6. On 13 July 1976, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) due to misconduct – frequent incidents of a discreditable nature with civil or military authorities. 7. The applicant acknowledged receipt of the separation notification. He consulted with legal counsel and he was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He requested consideration of his case by a board of officers and personal appearance before a board of officers. The applicant acknowledged the following: * he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him * he understood that as a result of the issuance of an undesirable discharge (discharge under other than honorable conditions), he may be ineligible for many or all benefits as a veteran under both Federal and State laws 8. He also submitted a statement on his own behalf wherein he stated: * he was being punished too harshly and he would be willing to accept NJP instead * he felt he could be an asset to the Army and that a small amount of responsibility for his misconduct fell with his chain of command * he felt he had been bounced around the unit too many times and he specifically asked to move outside the Company or Battalion * he would not be able to reach his goals if he were discharged with a bad discharge and he felt discriminated against 9. Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of AR 635-200 due to misconduct. The commander stated that he did not consider it feasible or appropriate to effect other disposition of the applicant's case because the applicant had resisted all attempts from the squad leader to the company commander. The intermediate commander recommended approval. 10. On 21 September 1976, a board of officers convened at Fort Hood, TX to consider whether the applicant should be retained or separated. The board of officers carefully considered the evidence before it and found the applicant was undesirable for further retention because of frequent incidents of discreditable nature with civil and/or military authorities and that his rehabilitation was not deemed possible. The board of officers recommended his discharge from the service because of misconduct with the issuance of an Undesirable Discharge Certificate. The board of officers' president forwarded the findings and recommendations to the convening/separation authority. 11. On 4 November 1976, the convening/separation authority approved the board of officers' findings and recommendations and ordered the requirements for rehabilitation be waived and the application be reduced, discharged, and issued an Undesirable Discharge Certificate. The applicant was accordingly discharged on 24 November 1976. 12. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of AR 635-200 due to misconduct with separation program designator code JKA (misconduct). His character of service was under other than honorable conditions and he was issued a DD Form 258A (Undesirable Discharge Certificate). His DD Form 214 further shows: * his SSN as "xxx-xx-xxxx" (the number 6 instead of the number 8 in the fifth digit) * he completed 2 years, 6 months, and 6 days of total active service * he had 5 days of lost time 13. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCE: 1. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for misconduct. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 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. 2. AR 635-5 (Personnel Separations - Separation Documents), then in effect, prescribes policies and procedures regarding separation documents. It also establishes standardized policy for preparing and distributing the DD Form 214. The purpose of a separation document is to provide the individual with evidence of their military service at the time of separation. It states for item 3, enter the individual’s SSN. DISCUSSION: 1. The applicant's enlistment contract listed his SSN as "xxx-xx-xxxx." His DA Form 2-1 that was created upon his entry on active duty also listed a similar SSN. Other documents in his service record show his SSN as "xxx-xx-xxxx." It appears when his DD Form 214 was processed, an incorrect SSN was entered. 2. The correct service record, with the correct SSN, was requested and received from NPRC. His service record reveals a history of misconduct that includes seven instances of NJP and frequent counseling by his chain of command but he failed to respond constructively. Accordingly, his chain of command initiated separation action against him. 3. His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the characterization of service is commensurate with the reason for his discharge. 4. The applicant was 18 years of age at the time of his enlistment and between 18 and 20 years of age when he displayed his pattern of misconduct. However, there is no evidence he was any less mature than other Soldiers of the same age who successfully completed their term of service. BOARD DATE: 3 May 2018 DOCKET NUMBER: AR20160008394 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 DD Form 214 to show his social security number as recorded on his Enlistment Contract. 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 the characterization of his service. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160008394 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008394 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2