APPLICANT REQUESTS: Reconsideration of his previous request to reaffirm the upgraded discharge he received under the provisions of the 1977 Department of Defense (DOD) Special Discharge Review Program (SDRP) so that he can again receive benefits from the VA.
APPLICANT STATES: In effect, that a black man at the time did not have a chance. He was told by the Colonel to use the staff car, and then the Colonel said he stole the car. That at the time all personnel were white and they were prejudiced. That he needs medical attention from the VA Hospital.
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 24 January 1996 (COPY ATTACHED).
The applicants contention of racism constitutes new argument.
Public Law 95-126, enacted on 8 October 1977, provided generally, that no VA benefits could be granted based on any discharge upgraded under either the Ford Memorandum of 19 January 1977, or the DOD Special Discharge Review Program (SDRP). It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases. The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.
As described in the original MOC, the applicant received an upgraded discharge which enabled him to apply for VA benefits as a result of the SDRP decision. However, he lost his eligibility for VA benefits when the review under Public Law 95-126 did not reaffirm the upgrade.
Army Regulation 15-185, paragraph 10c provides, in pertinent part, that reconsideration of a Board decision will be made when additional evidence or other matter including, but not limited to factual allegations or arguments, that were not previously available to the Board has been submitted.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The Army has no jurisdiction over the VA who operate under its own policies and regulations
2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.
3. There is no evidence in the available records to demonstrate that the applicant was the victim of racial prejudice.
4. Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file. It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit. The Board has never denied an application simply because it was not submitted within the required time.
5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its pervious decision.
6. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
Loren G. Harrell
Director
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