RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 November 2004
      DOCKET NUMBER:  AR2004103058


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests through counsel that his under honorable
conditions discharge, which was upgraded by the Department of Defense (DOD)
Special Discharge Review Program (SDRP), be affirmed.

2.  The applicant states, in effect, that counsel will provide the
particulars of the injustice in a separate letter and will provide the
supporting documentary evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's upgraded discharge be affirmed so
he may receive benefits from the Department of Veterans Affairs (DVA).

2.  Counsel states, in effect, that the applicant had two cases before the
Army Discharge Review Board (ADRB).  Counsel continues that the first
review, dated 30 October 1977, the ADRB voted unanimously to upgrade the
applicant's discharge to a general discharge under honorable conditions and
informed the applicant.  Counsel further states that the applicant filed
for DVA Education Benefits and was denied due to the original discharge.

3.  Counsel continues that on 11 May 1978 the applicant's discharge was
considered a second time by the ADRB under the provisions of Public Law 95-
126.  The ADRB reviewed and denied the request.  Counsel concludes that due
to the second ADRB review, the applicant was denied benefits and questioned
which review is binding.

4.  Counsel provides 27 pages of evidence which includes copies of two
board proceedings from the ADRB, dated 30 October 1977 and 11 July 1978;
copies of letters addressed to the applicant from the DVA; a copy of DD
Form 215 (Correction to DD Form 214, Report of Separation From Active
Duty), dated 3 August 1978; and a copy of a General Discharge Certificate,
dated 5 February 1971.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 11 July 1978, the date that his upgraded discharge was not
affirmed.  The application submitted in this case is dated 5 December 2003.


2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 11 June 1968, the applicant enlisted in the Regular Army in
Wilmington, North Carolina, in the pay grade of private/pay grade E-1 for a
period of three years.  After completion of the required training, he was
awarded military occupational specialty 11B (Rifleman) and assigned to the
1st Battalion of the 8th Calvary of the 1st Calvary Division in Vietnam.

4.  On 6 February 1969, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from his organization for
the period 10 January 1969 through 31 January 1969.  His punishment
consisted of reduction to the pay grade of private/pay grade E-1,
forfeiture of $26.00 per month for one month, 14 days extra duty, and 14
days restriction.

5.  On 21 July 1969, the applicant was honorably discharged for the purpose
of immediate reenlistment.  The applicant had completed 1 year, 1 month and
11 days of his three year commitment.

6.  On 22 July 1969, while the applicant was serving in Vietnam, he
reenlisted for a period of three years.

7.  Special Court-Martial Order 971, dated 29 April 1970, shows the
applicant was found guilty for being AWOL for the period 18 September 1969
through 11 March 1970.  His punishment consisted of forfeiture of $30.00
per month for six months and reduction to the pay grade of private/pay
grade E-2.

8.  On 18 May 1970, nonjudicial punishment was imposed against the
applicant for being AWOL from his unit from 24 April 1970 through 12 May
1970.  His punishment consisted of forfeiture of $26.00 per month for one
month, 14 days restriction to the limits of the company area, 14 days extra
duty, and reduction to the pay grade of private/pay grade E-1 (suspended
until 18 July 1970).

9.  Special Court-Martial Order 65, dated 18 September 1970, shows the
applicant was found guilty for being AWOL for the period 6 July 1970
through 27 July 1970.  His punishment consisted of confinement at hard
labor for a period of two months, forfeiture of $75.00 per month for two
months, and reduction to the pay grade of private/pay grade E-1.

10.  On 11 December 1970, nonjudicial punishment was imposed against the
applicant for being AWOL from his unit for the period 3 November 1970
through 1 December 1970.  His punishment consisted of forfeiture of $88.00
per month for one month (suspended for two months except to provide for a
forfeiture of $50.00 per month for one month), 14 days extra duty, and
restriction to the Special Processing Battalion area for 14 days.

11.  A DA Form 3082-R (Statement of Medical Condition), dated 2 February
1971, shows that the applicant's last medical examination was on 4 December
1970 and that there has been no change in his medical condition.

12.  A certificate, dated 19 October 1970, issued by the Army Mental
Hygiene Consultation Division at Fort Belvoir, Virginia, verified that the
applicant underwent a psychiatric evaluation on 15 October 1970.  The
examining medical officer, a Medical Corps officer trained in Psychiatry,
diagnosed the applicant with personality pattern disturbance (other).

13.  The examining medical officer determined that the applicant's
condition was due to deficiencies in emotional, personality and
characterological development of such a degree as to render him more of a
liability than an asset for further military service.  The examining
medical officer continued that the applicant was not amenable to
hospitalization, treatment, disciplinary action, training or
reclassification to another type of duty and further rehabilitative
measures in a military setting would not be productive.

14.  The examining medical officer opined that the applicant was mentally
responsible, able to distinguish between right and wrong and to adhere to
the right and has the mental capacity to understand and participate in
Board proceedings.  In conclusion, the examining medical officer
psychiatrically cleared the applicant for any administrative action or
disposition as deemed appropriate and recommended that he be separated from
the service.

15.  On 14 December 1970, the applicant was advised by his commanding
officer that he was being recommended for discharge under the provisions of
Army Regulation 635-212 (Personnel Separation Discharge Unfitness and
Unsuitability) for unfitness.  The memorandum further informed the
applicant of his right to present his case before a board of officers, to
submit any statements on his behalf, to be represented by counsel, and to
waive the above rights in writing.

16.  A DD 1AA Form 653-1 (Individual's Statement – Separation under AR
[Army Regulation] 635-212), dated 16 December 1970, shows that the
applicant had been advised by counsel about the discharge process under the
provisions of Army Regulation 635-212 for unfitness.  This form also shows
that the applicant waived his rights to representation by his appointed
counsel, to personally appear or have his case considered by a board of
officers, and to submit any statements on his own behalf.

17.  This statement further shows that the applicant acknowledged he could
be discharged under other than honorable conditions and furnished an
Undesirable Discharge Certificate, that he may be deprived of many or all
Army benefits, that he may be deprived of his rights and benefits as a
veteran under both Federal and State law.  The applicant also acknowledged
that he may expect to encounter substantial prejudice in civilian life
because of a discharge under other than honorable conditions.  Both the
applicant and his counsel signed this document in their own hand.

18.  A memorandum from Company B, Special Processing Battalion, United
States Army Engineer Center and Fort Belvoir, dated 23 December 1970,
recommended that the applicant be discharged under the provisions of Army
Regulation 635-212 for unfitness and that an Undesirable Discharge
Certificate be furnished. This memorandum continues that the reason for the
recommendation was that the applicant has shown a propensity for absenting
himself without leave, despite the attempts to rehabilitate or develop him
as a satisfactory soldier.

19.  On 10 January 1971, the commanding major general in command of the
United States Army Engineer Center and Fort Belvoir, waived the
requirements for further counseling and rehabilitation, approved the
recommendation for discharge and directed that the applicant be discharged
with an Undesirable Discharge Certificate.

20.  The applicant was separated on 5 February 1971, under the provisions
of Army Regulation 635-212, for unfitness and furnished an Undesirable
Discharge Certificate.  He had served 1 year, 7 months and 10 days of net
active service with 375 days of lost time due to AWOL and confinement.

21.  On 6 July 1977, the applicant applied to the ADRB for an upgrade of
his undesirable discharge to a general discharge.  The applicant was
notified by an undated letter from the ADRB that he was qualified for
consideration for upgrade of his discharge under the DOD SDRP.  The ADRB
panel that reviewed his case on 19 October 1977, determined that the
applicant met the primary criteria due to a previous honorable discharge,
his service in Vietnam and being awarded the Air Medal.  The ADRB panel
indicated that the applicant's frequent acts of misconduct led to his
discharge.  The ADRB voted unanimously to upgrade his discharge to a
general discharge under the SDRP.

22.  On 8 November 1977, the ADRB dispatched a letter to the applicant
informing him that his discharge had been upgraded to a general discharge
under the SDRP.  The separation document that the applicant was furnished
at the time of his discharge was voided and he was furnished a new DD Form
214 which reflects the character of his service as under honorable
conditions.

23.  On 11 July 1978, the ADRB conducted a second review of the applicant's
general discharge under the uniform standards for discharge review, in
effect at that time, and voted unanimously to not affirm the applicant's
discharge.  The applicant was informed in a letter, dated 17 August 1978,
from The Adjutant General of the Army, that under a new law, his discharge
would not qualify him for benefits under the Veterans Administration.

24.  The applicant's service records show that he applied to the Army Board
for Correction for Military Records (ABCMR) requesting a recharacterization
of his general discharge to an honorable discharge and to reinstate all
benefits.  The ABCMR reviewed and denied the request on 13 January 1982.

25.  Army Regulation 635-212 (Personnel Separations Discharge Unfitness and
Unsuitability), 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 members who were involved in frequent
incidents of a discreditable nature with civil and/or military authorities
were subject to separation for unfitness.  When separation for unfitness
was warranted, an undesirable discharge was normally considered
appropriate.

26.  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) 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.

27.  Army Regulation 635-200, paragraph 3-7, 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.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

28.  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 DVA benefits, unless they had been
entitled to such benefits before their SDRP review.

29.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under honorable conditions discharge
should be affirmed so that he can receive DVA benefits.

2.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.  Lacking evidence
to the contrary, it is determined that all requirements of law and
regulations were met and the rights of the applicant were fully protected
throughout the separation process.

3.  The applicant’s administrative separation was in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.  The type of discharge and reason for
separation were appropriate considering all the facts of the case.

4.  The applicant contends that his discharge was reviewed on two occasions
by the ADRB and that the upgrade provided in the first review was not
affirmed in the second review.  The applicant further contends that the
second review unfairly denied him DVA benefits.

5.  The ADRB's initial review of the applicant's discharge was under the
provisions of the SDRP.  The ADRB voted unanimously to upgrade the
applicant's discharge to a general discharge and the proceedings was
conducted in accordance with law and procedures under the SDRP.

6.  The ADRB's second review of the applicant's general discharge was to
determine that the discharge should be affirmed.  The ADRB voted
unanimously to not affirm the applicant's general discharge due to his
extensive disciplinary record, his failure to respond to the numerous
counseling sessions and attempts to rehabilitate him, and his total
disregard for military authorities.

7.  There is no evidence and the applicant has not provided evidence to
show that the ADRB's second decision was improper or flawed.  The ADRB's
decision to not affirm the applicant's general discharge was consistent
with all applicable laws and regulations.

8.  The evidence of record clearly shows that the applicant had an
extensive disciplinary record.  Notwithstanding the original determination
by the ADRB, the official record shows that his service was not
satisfactory and that his general discharge should not be affirmed.

9.  After a review of the applicant’s record of service, it is evident that
his quality of service did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, he is not entitled to
an honorable discharge.

10.  The applicant’s contentions have been noted; however, these factors do
not provide a sufficient basis for relief.  The applicant’s administrative
separation was accomplished in compliance with applicable regulations and
there is no indication of procedural errors that would tend to jeopardize
his rights.  The discharge proceedings were conducted in accordance with
law and regulations applicable at the time and the character of the
discharge is commensurate with the applicant's overall record of military
service.

11.  The ABCMR does not grant requests for affirmation of discharges solely
for the purpose of making the applicant eligible for benefits.

12.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant did not submit any evidence that would
satisfy this requirement.

13.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 11 July 1978.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 10 July 1981.  However, the
applicant did not file within the 3-year statute of limitations and has not
provided a compelling explanation or evidence to show that it would be in
the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm__  __lh ____  __ls ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Mark D. Manning____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004103058                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004/11/09                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1971/02/05                              |
|DISCHARGE AUTHORITY     |SDRP                                    |
|DISCHARGE REASON        |Upgraded on 19 Oct 77                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.  954                 |A00.20/SDRP                             |
|3.  676                 |A68.01/no affirmation                   |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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