ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20190005269 APPLICANT REQUESTS: a. His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge; and b. Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20130018073 on 2 July 2014. Specifically, he requests correction of his DD Form 214 (Report of Separation from Active Duty) to show his social security number (SSN) as "XXX-XX-XXXX" instead of "XXX-XX-XXXX." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 11 January 2019 * DD Form 214, for the period ending 16 September 1975 * a copy of his social security card FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the ABCMR 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. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130018073 on 2 July 2014. 3. The applicant states he was falsely accused of robbery while in service. He went to trial and the charges were dismissed. 4. The applicant's DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he enlisted in the Regular Army on 1 November 1973. This document shows he listed his SSN as "XXX-XX-XXXX" in item 1 (SSN) and he authenticated the correctness of the document entries by signing the document. 5. In conjunction with his enlistment processing, the applicant completed a DD Form 398 (Statement of Personal History), wherein he entered his SSN as "XXX-XX-XXXX" in the appropriate block. 6. Following the applicant's entry on active duty and completion of initial entry training, he was assigned for overseas duty in the Federal Republic of Germany. 7. Court-martial charges were preferred against the applicant on 4 August 1975 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with robbery, on or about 31 July 1975, while stationed in the Federal Republic of Germany. 8. The applicant consulted with counsel on 20 August 1975. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. His election shows he did not intend to submit a statement in his behalf. 9. The separation authority approved the applicant's request for discharge on 5 September 1975, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and receive an undesirable discharge. 10. The applicant was discharged on 16 September 1975. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, and his service was characterized as UOTHC. Item 3 (SSN) of his DD Form 214 shows his SSN was recorded as "XXX-XX-XXXX." 11. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. Army Regulation 635-200 provides the authority for the separation of enlisted personnel upon the expiration of their term of service; the authority and general provisions governing the separation of enlisted personnel prior to the expiration of their term of service; and the criteria governing the issuance of Honorable, General, and UOTHC Discharge Certificates. 13. The Board should consider the applicant's statement and his record documents in accordance with the published equity, injustice, or clemency determination guidance. 14. Documents in the applicant's military personnel record consistently show his SSN was recorded as "XXX-XX-XXXX" throughout his period of service. There is no evidence he used the requested SSN "XXX-XX-XXXX" at any point during his period of service. 15. For historical purposes, the Army has an interest in maintaining the integrity 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. 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 considered the applicant’s statement, his record of service, the Social Security Card he provided (issued in 2009), the SSN recorded in his records, the frequency and serious nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found no supporting reason for the SSN card issued to him in 2009. The Board found no in-service mitigating factors for his serious misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. By a preponderance of evidence, the Board determined that the character of service the applicant received upon separation and the SSN reflected and acknowledged by the applicant throughout his record were not in error or unjust. 2. The applicant is advised that a copy of this decision will be placed in his personnel file to clarify the difference between the SSN under which he served and the SSN he uses today. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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, 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 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. 2. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures regarding separation documents. It established standardized policy for preparing and distributing the DD Form 214. a. The purpose of a separation document is to provide the individual with documentary evidence of his or her military service at the time of separation. Therefore, it is important the information entered thereon is complete and accurate as of that date. b. Section Ill (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contained guidance for preparation of the DD Form 214. It stated that all available records would be used as a basis for preparation of the DD Form 214, including the Enlisted Qualification Record and orders. For item 3, it stated to transcribe the SSN from the DA Form 2139 (Military Pay Voucher). 3. Army Regulation 635-200, in effect at the time, set 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 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. ABCMR Record of Proceedings (cont) AR20190005269 6 1