IN THE CASE OF: BOARD DATE: 13 June 2013 DOCKET NUMBER: AR20120020776 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 affirmation of his upgraded discharge by the Army Discharge Review Board (ADRB) on 13 January 1976 under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so he can receive veterans' benefits. 2. He states he didn't receive a dishonorable discharge. 3. He provides: * Self-authored statement * DD Form 215 (Correction to DD Form 214 (Report of Separation from Active Duty)) * Letter to the Department of Veterans Affairs (VA) 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 was inducted into the Army of the United States on 12 August 1969. 3. He was promoted to specialist four on 28 May 1970. 4. On 28 October 1970, he was convicted by a summary court-martial of being absent without leave (AWOL) from 31 July to 1 October 1970. 5. On 8 March 1971, charges were preferred against him for being AWOL from 25 November 1970 to 3 March 1971. 6. He consulted with legal counsel and voluntarily requested discharge under the provisions 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 doing so, he acknowledged he might encounter substantial prejudice in civilian life. He also acknowledged he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge were issued. He submitted statements in his own behalf. He described the hardships in his family and his request for compassionate reassignment. 7. The separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade. 8. He was discharged on 13 April 1971 after completing 1 year, 2 months, and 20 days of creditable active service with 160 days of lost time. 9. On 13 January 1976, he was awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1974. 10. On 20 August 1980, the ADRB denied the applicant's request for an upgrade of his discharge to honorable. 11. He provided a self-authored statement in which he stated: a. he experienced family problems while he was on 30-day leave. b. he was assigned to Vietnam, but he and his father both objected to this assignment because it took the lives of innocent people. c. he didn't pursue a conscientious objector status or leave the country. d. He contacted his congressman's office, but a response didn't come prior to his reporting date. As a result, he chose not to report to Fort Lewis, WA and he remained in contact with his congressman's office. The congressman's office told him he couldn't receive any help until he surrendered to military control. e. he was court-martialed and placed on reassignment to Vietnam. He went AWOL again and surrendered to military control and requested a chapter 10 discharge. f. he was a good Soldier and has not broken the law or been arrested since that time, has supported his country in many ways, never the left the country as a deserter, and chose to change his situation in a lawful way. g. he has raised two children to be good citizens, been very active in church, and has aided many community improvements over the years. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 13. In 1977, DOD was directed by the President to establish the SDRP. The SDRP stipulated that all former service members who received undesirable or general discharges during the period 4 August 1964 through 28 March 1973 were eligible for an upgrade review under the SDRP. It further indicated that individuals who received an undesirable discharge during the Vietnam War era would have their discharges upgraded if they met one of the following criteria: wounded in combat in Vietnam, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia, completed alternate service or were excused from completion of alternate service under the clemency program instituted in 1974, or received an honorable discharge from a previous tour of military service. 14. In October 1978, Public Law 95-126 was enacted. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required. Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of an upgrade by the Presidential Memorandum of 19 January 1977 or the SDRP unless an eligibility determination is made under the published uniform standards and procedures. The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service correction boards in order to entitle the service member to VA benefits. DISCUSSION AND CONCLUSIONS: 1. The applicant's record shows he was charged with the commission of an offense which is punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. His service record shows he was convicted by a summary court-martial of being AWOL for 60 days and he has a record of 160 days of lost time. 3. The applicant's discharge was reviewed under the Presidential Proclamation 4313 and he was granted clemency. 4. The ADRB denied the applicant's for an upgrade of his undesirable discharge. 5. His service record is void of evidence which indicates his undesirable discharge was reviewed under the SDRP. 6. Nevertheless, based on his record of substandard performance and/or indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to the requested relief. BOARD VOTE: ________ ________ ________ 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 that 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. ABCMR Record of Proceedings (cont) AR20120020776 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120020776 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1