ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20190003028 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service is characterized as general, under honorable conditions in lieu of under conditions other than honorable. He also requests that his social security number be corrected to the SSN shown on his Social Security Card. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for the Review of Discharge from the Armed Forces of the United States) * Social Security Card FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that he completed basic training at Fort Bragg, NC, and the SSN that is listed on his DD Form 214 is wrong. Additionally, he states that he got his orders for Vietnam, he went home on leave, and a friend gave him a going away party. On his way home it started pouring down rain. He opened the door to the basement of an apartment to get out of the rain and he sat on the steps until the rain stopped. When he tried to open the door to get out it was locked. He was going out of the window when an off duty policeman saw him. He told the policeman that he was trying to get out of the house, not break in. The policeman was believed and he was convicted and served time. Therefore, be believes his discharge should be upgraded. His military service record was good prior to this. 3. On 26 October 1967, he enlisted in the Regular Army for 3 years using his service number. 4. Most of the documents in his record list his service number; however, his DA Form 20 (Enlisted Qualification Record) and his Statement of Personal History, the document on which his background investigation was based shows the SSN that is listed on his Social Security Card. 5. On 7 January 1968, while at Fort Bragg, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on for being absent without leave (AWOL) from 2 to 7 January 1968. His punishment consisted of extra duty and restriction. 6. He completed his training requirements and he was awarded military occupational 12A (Pioneer) on 5 April 1968. He left Fort Leonard Wood, MO, on 15 May 1968, in a casual leave status enroute to the Replacement Station, Oakland, CA with a follow-on assignment to Vietnam. 7. His DA Form 20 (Enlisted Qualification Record) shows on: * 25 May 1968, he was apprehended by civil authorities in Philadelphia, PA * 30 September 1968, he was again apprehended by civil authorities in Philadelphia * 19 October 1968, he was apprehended by civil authorities for civil offenses * 30 January 1969, he appeared before a judge in Latrobe City Hall, Philadelphia and was placed on 2 years of probation * 7 February 1969, he was returned to military control at the Post Stockade, Fort George Meade, MD 8. A Report of Psychiatric Evaluation, dated 20 March 1969, shows the applicant was diagnosed with a, “Passive dependent personality.” The examining official stated: a. This 20 year old EM (enlisted member) was seen at the Mental Hygiene Consultation Service for psychiatric evaluation pursuant to separation under the provisions of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). He was presently confined in the stockade [at Fort George Meade] for being AWOL. He had been AWOL four times with an Article 15 as punishment. [While in an AWOL status], he was convicted, sentenced, and imprisoned for 11 months in Philadelphia for larceny, carrying a concealed weapon, and burglary. The EM finished the 11th grade and went to work while going to night school for interior decorating in Philadelphia. He had been in no civilian trouble prior to entering the service. b. EM is oriented, rational, coherent, and gives no evidence of abnormal thinking or behavior suggesting a serious mental illness. c. EM’s condition is a part of a chronic character and behavior disorder due to deficiencies in emotional and personality development. This condition is not amenable to hospitalization, treatment, training, transfer or reclassification to another type of duty and renders the EM unsuitable for military duty. d. EM is cleared for any administrative or judicial action deemed appropriate by the command. 9. The complete facts and circumstances surrounding the applicant’s discharge are not available for review with this case. However, his record contains: a. An Individuals Statement-Separation under AR 635-212, dated 26 March 1969, showing he acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness. The applicant waived consideration of his case by a board of officers and a personal appearance before a board of officers. He elected not to submit a statement on his own behalf. b. DD Form 214 that was prepared at the time of separation confirms he was discharged under the provisions of AR 635-212 by reason of unfitness (misconduct) with separation program number 386 (shirking). His character of service was under conditions other than honorable. He completed 6 months and 6 days of total active service and he had 339 days of lost time. 10. The applicant petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations on two occasions and his request was denied 18 November 1977 and on 20 March 1979 11. The applicant contends, in effect, his discharge should be upgraded because he completed his training requirements and went home on leave enroute to Vietnam. While at home a friend gave him a going away party. He got locked in the basement of an apartment when he stepped in to get out of the rain. When the rain stopped, he found that the door was locked and he attempted to go out through a window. An off duty policeman saw him. He was arrested, convicted by a civil court, and served time. Additionally, he contends the SSN that is listed on his DD Form 214 is wrong. 12. The available record shows the applicant was AWOL four times and he received one Article 15. While in an AWOL status he was convicted of larceny, carrying a concealed weapon, and burglary. He was sentenced to serve 11 months in civil confinement in Philadelphia. Upon his return to military control he was discharged under the provisions of AR 635-212 by reason of unfitness (misconduct), for shirking, with service characterized as under conditions other than honorable. He completed 6 months and 6 days of a 3 year enlistment obligation and he had 339 days of lost time due to being in civil and military confinement. 13. AR 635-212, in effect at the time, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by an established pattern of shirking. This regulation also prescribed that an undesirable discharge with a character of service of under conditions other than honorable was normally considered appropriate unless particular circumstances warranted an honorable or a general discharge. 14. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. 15. In regards to the correction of his SSN, the applicant enlisted when the service number was used as the primary means of identification and even though most of his service records list his service number, his DA Form 20 and DD Form 398 confirms he used the SSN that is listed on his Social Security Card when he served in an active duty status. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the serious nature of his misconduct, to include his civil conviction, reviewed his statement and found no mitigating factors, during service or post-service, in consideration of relief. The Board did find documents in the record that supports the applicant’s request for correction of his SSN on his DD Form 214. 2. After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 for the period of service ending 10 April 1969 to show the Social Security number on the Social Security card he provides in item 3. 2. The Board further determined 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 discharge under other than honorable conditions. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-212, in effect at the time, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 3. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel. a. Paragraph 3-7a states 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 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. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.