MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 11 OCTOBER 2001
         DOCKET NUMBER: AR2001058887

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Mark D. Manning		Member
Mr. Jose A. Martinez		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his discharge be upgraded to honorable or general.

APPLICANT STATES: That he received an undesirable discharge in 1972; however, he requested a change to that discharge and his discharge was upgraded to under honorable conditions. He was informed that he would receive VA benefits. He needs medical attention. He has a serious eye injury that is service connected. He is unable to get medical help from the VA without an honorable discharge.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant was inducted into the Army on 7 December 1967, trained as a vehicle driver, and spent a year in Vietnam. He was discharged on 11 September 1969 at Fort Bragg, North Carolina with an honorable characterization of service. He had 1 year, 9 months, and 5 days of service.

The applicant reenlisted in the Army for 6 years on 12 September 1969. His record thereafter shows that he received nonjudicial punishment on six occasions for AWOL and for being absent from his place of duty. On 28 June 1972 the applicant was arraigned, tried, and convicted of unlawfully having in his possession a hypodermic syringe and hypodermic needle, of wrongfully having in his possession one gram more or less of heroin, of wrongfully appropriating money through false pretenses, and of three specifications of AWOL. He was sentenced to be confined at hard labor for four months.

On 29 August 1972 the applicant was AWOL and dropped from the rolls of the organization. He was apprehended by civilian authorities on 29 November 1972 and returned to military control on 8 December 1972.

An 11 January 1973 report of medical examination shows that he was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history that he furnished for the examination the applicant stated that his health was good.

The report of mental status evaluation shows that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. He met the medical standards for retention in the Army.

On 12 January 1973 the applicant consulted with counsel and stated that he had been advised of the basis of the contemplated action to discharge him for unfitness under the provisions of Army Regulation 635-212. He waived consideration of his case by a board of officers and elected not to submit statements in his own behalf. He stated that he understood the nature and consequences of the undesirable discharge that he might receive.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged for unfitness. He stated that the applicant had demonstrated the ability to perform and meet military standards but refused to do so. He recounted the applicant’s past conduct, stated that he had continued his pattern of AWOL after being assigned to the 5^th Correctional Training Unit, and had expressed and demonstrated a desire not to return to duty. He stated that the applicant had been counseled to no avail.

The separation authority approved the recommendation and directed that the applicant be furnished an Undesirable Discharge Certificate. He was discharged under conditions other than honorable on 19 January 1973. He had 1 year, 9 months, and 5 days of service, and 217 days of lost time.

On 19 November 1976 the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.

On 3 August 1977 the applicant was notified that his application for consideration under the “DOD Discharge Review Program (Special)” had been examined and that after reviewing the findings and conclusion of the Army Discharge Review Board, the Secretary of the Army directed that his discharge under conditions other than honorable be upgraded to under honorable conditions (general) effective on 5 July 1977. The applicant was issued a DD Form 214 upgrading his 19 January 1973 discharge to under honorable conditions.

On 7 July 1978 the applicant was informed by this agency that a preliminary review of his discharge had been completed by the Discharge Review Board as required by Public Law 95-126, and that as a result of that review the Board had made a preliminary determination that he would not qualify for upgrading under the new uniform standards for discharge review. He was further informed that the character of his discharge awarded him under the Special Discharge Review Program (SDRP) would not change; however, under the law, the preliminary determination meant that he might not be automatically eligible for benefits from the VA.

On 2 November 1978 the applicant was forwarded the case report and directive of the final determination of his case. On 6 December 1978 he was formally notified that the previous upgrading of his discharge had been re-reviewed by the Army Discharge Review Board and that board determined that he did not qualify for upgrading under the new uniform standards for discharge review. Accordingly, his upgraded discharge was not affirmed. He was furnished a DD Form 215, correcting his DD Form 214. He was further informed that the DD Form 215 did not change or modify the upgraded discharge that he previously received; however, because of a new law, he would not be able to use that discharge to qualify for benefits under the VA.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. Paragraph 6 of the regulation provided, in
pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities, drug addiction or the unauthorized use or possession of habit-forming drugs or
marijuana, or an established pattern of shirking. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD
Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable
discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors,
including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of
discharge, would also be considered upon application by the individual.

In October 1978, Public Law 95-126 was enacted. This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as
a deserter or a conscientious objector. The DOD was required 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 was 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.

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 applicant’s discharge proceedings and his administrative separation were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service. The determinations made under the SDRP and Public Law 95-125 were in accordance with the applicable directives and law in effect at that time.

2. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

4. 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

__JL____ __MDM__ __JAM __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058887
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011011
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	360
3.
4.
5.
6.