MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002070023

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. John T. Meixell		Member
Mr. Melvin H. Meyer		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: In effect, that his discharge characterized as under other than honorable conditions (UOTHC) be upgraded to under honorable conditions (UHC) in order to receive Veterans Administration (VA) benefits.

APPLICANT STATES: In effect, that his UOTHC was upgraded to UHC in 1977 and that he is in need of assistance from the VA; however, his discharge prevents him from obtaining VA benefits. In support of his application, he submits copies of his: separation orders; DD Form 214 (Report of Separation from Active Duty); DD Form 215 (Correction to DD Form 214); VA Form 21-4138 (Statement in Support of Claim); letter from the VA; and four character reference letters.

COUNSEL CONTENDS: The Disabled American Veterans (DAV), as counsel for the applicant, contends that the applicant is requesting a current letter reflecting his discharge upgrade from UOTHC to UHC. Counsel also states that the applicant served honorably from 18 May 1966 to 6 May 1969, and that his initial discharge was UOTHC; however, on 31 May 1977, his discharge was upgraded to UHC. The applicant's VA records continue to reflect an UOTHC discharge and the applicant is requesting a new letter reflecting his discharge upgrade in order to receive VA benefits for his service connected medical conditions. Counsel requests that the Board take appropriate action and initiate any necessary development in the applicant's case.

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 18 May 1966. He served in Vietnam from 23 November 1966 to 9 December 1967, and was separated on temporary records.

Between September 1966 and May 1967, he was punished on five occasions under Article 15, Uniform Code of Military Justice (UCMJ), for assault, being absent from his appointed place of duty, violation of a lawful regulation, and failure to go to his appointed place of duty on two occasions. His punishments consisted of forfeitures of pay, restrictions, extra duties, and reduction to pay grade E-2 and E-1.

He was convicted by two special courts-martial of being disrespectful towards a commissioned officer and of being AWOL from 5 March to 7 May 1968 (63 days)
His sentences consisted of confinement, forfeitures of pay, and a reduction to pay grade E-1.

The applicant's medical records are unavailable for review by this Board.





The facts and circumstances pertaining to the applicant’s discharge are not present in the available records. However, his Army Discharge Review Board (ADRB) Case Report and Directive shows that he requested discharge for the good of the service in lieu of trial by court-martial. His case report indicated that
he had five Article 15s, UCMJ, two special courts-martial, and a total of 475 days of lost time. His case report also stated that the applicant was separated in a proper manner. The ADRB noted the applicant’s tour of duty in Vietnam and that his conduct and efficiency ratings were poor and good during his tour. His acts of discipline were noted and the overall impact of his acts of indiscipline lowered the quality of service rendered by him below that level which could be recognized as having been performed UHC under Uniform Standards. The ADRB concluded that affirmation of the upgraded discharge was not appropriate in this case.

He was furnished an UOTHC discharge on 6 May 1969. He was granted partial relief on 31 May 1977, under the criteria of age, general aptitude, and length of service. He had a total of 1 year, 9 months, and 27 days of creditable service. His DD Form 214 shows that he had a total of 441 days of lost time.

A letter from the Adjutant General, dated 16 November 1978, informed the applicant that the previous upgrading of his discharge was re-reviewed by the ADRB as required by Public Law 95-126. Upon review, the ADRB determined that the applicant's discharge did not qualify for upgrading under the new uniform standards for discharge reviews. Accordingly, the applicant's upgraded discharge under the DOD SDRP was not affirmed. This letter also stated that because of a new law, the applicant is unable to use this discharge for benefits under the VA.

The applicant provided four character references letters, which stated that he is a compassionate, dedicated and loving Christian, active member in the ministry, and sang in the male chorus.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted
personnel. 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, at any time after the charges
have been preferred, submit a request for discharge for the good of the service
in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable
discharge.





The applicant applied to the ADRB for an upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP) on 27 January 1977. The ADRB upgraded his discharge to general (UHC) under the provisions of the SDRP on 7 September 1978.

The SDRP, often referred to as the "Carter Program," was announced on 29 March 1977. The program mandated upgrade of administrative discharges if the applicant met one of seven specified criteria to include various aspects of service in Vietnam. Compelling reasons for upgrade under primary criteria were the award of a decoration or service medal, wounded in action, satisfactory completion of a tour of duty in Southeast Asia, receipt of a prior honorable discharge, or completion of satisfactory service of 24 months prior to discharge.
Reasons for granting an upgrade under secondary criteria include age, aptitude, education level, alcohol/drug problem, record of citizenship, etc.

Public Law 95-126, enacted on 8 October 1977, provided generally, that no
VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD 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.

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. In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2. The type of separation directed and the reasons for that separation appear to be appropriate considering all of the available facts of the case.

3. The applicant’s discharge was upgraded to general (UHC) under the SDRP on 26 July 1977.






4. The Board notes that the applicant's upgrade was not affirmed under the provisions of discharge review standards established by the Department of the Army in accordance with Public Law 95-126. Therefore, for the purposes of VA benefits, his discharge remains an undesirable discharge. It must be noted that the Department of Veteran Affairs must make a final determination as to veteran entitlements and because of a new law; the applicant is unable to use this discharge to qualify for benefits under the VA.

5. While the Board is empathetic, it does not change the character of service for the purpose of obtaining eligibility for benefits.

6. The Board also notes the applicant’s character references which stated that
he was a compassionate, dedicated and loving Christian, was an active member in the ministry, and sang in the male chorus; however, this evidence is insufficient to support his request for affirmation of his UHC discharge in order to receive VA benefits.

7. 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 this requirement.

8. 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

__ca___ ___jm___ __mm____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070023
SUFFIX
RECON
DATE BOARDED	20020905
TYPE OF DISCHARGE	UOTHC/to GD
DATE OF DISCHARGE	19690506
DISCHARGE AUTHORITY	AR .635-200 chap 10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	360
2.
3.
4.
5.
6.