RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060010834 


	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.


X

	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, in effect, reconsideration of his request that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that after 39 years and 11 months of being perceived as a loser, he feels that he should be able to be seen as an honorable person.  He claims that since his discharge, he was terminated from the first good job he held and has been rejected on many occasions since.  He also claims that he has proven himself to be a good father and helped raise three daughters and a son.  He further states that he was diagnosed with a mental disorder in 1992, but has worked his way back from being suicidal to the point he is now able to go back to working part-time.  

3.  The applicant provides a letter from the Congress of the United States, dated 12 July 2006, and a Self-Authored Letter, dated 8 June 2006, in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050008446, on 23 March 2006.

2.  During its original review of his case, the Board concluded the applicant's separation processing was accomplished in accordance with applicable regulations, with no indication of procedural errors that would have tended to jeopardize his rights.  It also found that the quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel, and therefore, his record of service was not sufficiently meritorious to warrant an HD.  The Board further noted that on 27 April 1977, the Department of Defense (DOD) Special Discharge Review Board (SDRP) had upgraded the applicant's undesirable discharge (UD) to a GD.  

3.  The applicant's records shows he initially enlisted in the Regular Army and entered active duty on 10 November 1953.  He was trained in, awarded, and served in military occupational specialty (MOS) 112.67 (Heavy Weapons Infantryman), and the highest rank he attained while serving on active duty was sergeant (SGT). 

4.  The applicant's disciplinary record includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  5 August 1963, for being absent without leave (AWOL); 
25 October 1963, for using indecent, insulting and obscene language; and 
14 February 1964, for being absent without leave (AWOL).  

5.  On 30 July 1964, a Special Court-Martial (SPCM) convicted the applicant of violating Article 86 of the UCMJ by being AWOL from on or about 3 June through on or about 11 July 1964.  The resultant sentence was a forfeiture of $50.00 per month for six months.

6.  On 8 June 1965, a Special Court-Martial (SPCM) convicted the applicant of two specifications of violating Article 86 of the UCMJ by being AWOL from on or about 12 March through on or about 29 April 1965; and from on or about 
16 through on or about 19 May 1965.  The resultant sentence was confinement at hard labor for two months and a reduction to the lowest enlisted grade.

7.  On 21 June 1965, the unit commander notified the applicant he was recommending his discharge prior to his expiration term of service (ETS) due to unfitness under the provisions of Army Regulation 635-208.  He stated the reason for his recommendation was the applicant's four periods of AWOL, two periods of confinement, two convictions by court-martial, and his being dropped from the rolls on two occasions.

8.  On 21 June 1965, the applicant was counseled and advised of the basis for the contemplated separation action, and of his right to be represented by counsel at a hearing.  He waived his right to counsel and to have his case considered by a board of officers, and he elected not to submit a statement in his own behalf.  

9.  On 24 June 1965, the separation authority approved the applicant’s separation and directed he receive an UD.  On 30 June 1965, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 11 years and 23 days of creditable active military service, and that he accrued 151 days of time lost due to AWOL and confinement.   


10.  On 27 May 1977, the Department of Defense (DOD)  Special Discharge Review Board (SDRB) voted to upgrade the applicant's discharge from an UD to a GD.

11.  On 10 March 1978, the Army Discharge Review Board (ADRB) reconsidered the applicant's case using the uniform standards established in Department of Defense Directive 1332-28, as was required by Public Law 95-126, dated 
8 October 1977, and affirmed the GD issued by the SDRP.  The ADRB case report informed the applicant that the affirmation would enhance his accessibility to the Department of Veterans Affairs (VA) benefits if he should apply.  

12.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service.  The regulation provided, in pertinent part, that members who displayed undesirable habits and traits were subject to separation for unfitness.  An UD was normally considered appropriate.

13.  The DOD SDRP was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received UD’s or GD’s during the period 4 August 1964 through 28 March 1973, were eligible for review under the SDRP.  It further indicated that individual’s who received a UD during the RVN 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 as sea or in the Western Pacific in support of operations in Southeast Asia; completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974; or received an honorable discharge (HD) from a previous tour of military service. 

14.  On 8 October 1977, Public Law 95-126 added a provision of law that stipulated that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions (UOTHC) discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA.  The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions, and that all discharges upgraded under the automatic criteria established under the 
SDRP be reconsidered under the newly established uniform discharge review standards.  On 29 March 1978, these newly established uniform discharge review standards were published in Department of Defense (DOD) Directive 1332-28.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be further upgraded to an HD was carefully considered.  However, the evidence of record confirms the applicant’s initial separation processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the discharge process.  Further, the discharge review process that resulted in the applicant's discharge being upgraded to a GD was also accomplished in accordance with the existing law and regulations in effect at the time and it is concluded that there was no error or injustice related to this process.  

2.  While it is concluded that the ADRB action to upgrade the applicant's discharge to a GD was appropriate, his record does reveal an extensive disciplinary history that includes two court-martial convictions and his acceptance of NJP on three separate occasions.  This record of misconduct clearly diminished the overall quality of the applicant's service below that meriting a fully honorable discharge.  As a result, there is an insufficient evidentiary basis to support a further upgrade of his discharge at this time.  

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 this requirement.

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 to amend the decision of the ABCMR set forth in Docket Number AR20050008446, dated 23 March 2006.




_____X___
          CHAIRPERSON




INDEX

CASE ID
ARAR20060010834
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/6
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
1965YYYYMMDD
DISCHARGE AUTHORITY
AR 635-208
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.