RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007 
	DOCKET NUMBER:  AR20060010919 


	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, affirmation of the 31 May 1977 discharge upgrade action of the Special Discharge Review Board (SDRB), which upgraded his undesirable discharge (UD) to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that his UD was upgraded to a GD by the SDRB on 31 May 1977; however, this upgrade was not affirmed by the Army Discharge Review Board (ADRB) under uniform standards when it reviewed the case on 28 June 1978.  As a result, he is unable to receive veterans benefits from the Department of Veterans Affairs (VA).  He now requests that his discharge be affirmed so that he may receive VA benefits.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Letter; Separation Document (DD Form 214), Third Party Letters; Program Support Bureau Training Division Certificates; University of California Los Angeles UCLA Extension Dual Diagnosis Certificate; Certificated Chemical Dependency Counseling Certificate Program; Statewide California Coalition for Battered Women Certificate; Certificate of Participation; Certificates of Achievement; University of Southern California Certificate of Completion; Social Model Recovery Systems Certificate of Completion; Voluntary Service Awards; Community Youth Gang Services Appreciation Award; Tuberculosis Prevention &Education Training Certificate of Completion; and Crisis Prevention Institute Certificate of Participation. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 15 November 1972.  The application submitted in this case is dated 
24 July 2006.

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 limitations 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.  The applicant’s record show he enlisted in the Regular Army and entered active duty on 15 November 1972.  He was trained in, awarded, and served in military occupational specialty (MOS) 51N (Water Supply Specialist).  

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he attained the rank of private first class (PFC) on 10 June 1971, and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 
of the Uniform Code of Military Justice (UCMJ) on 6 August 1971, for being absent without leave (AWOL) from 31 July 1971 through 1 August 1971.  His punishment for this offense was a forfeiture of $25.00.  

6.  On 18 January 1971, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 
22 September 1970 through on or about 4 January 1971.  The resultant sentence included a forfeiture of $50.00, confinement at hard labor for 30 days (suspended for 60 days), and a reduction to private/E-1 (PV1). 

7.  On 16 March 1971, a SPCM found the applicant guilty of violating Article 86 of the UCMJ by failing to go at the prescribed time to his appointed place of duty on or about 12 March 1971.  The resultant sentence included confinement at hard labor for 3 days.

8.  On 30 June 1972, the unit commander recommended the applicant be separated for unfitness under the provisions of paragraph 6a (1), 
Army Regulation 635-212.  He cited the applicant's frequent incidents of AWOL, his two SPCM convictions and the Article 15 he received as the reasons for taking the action.  On 7 July 1972, the applicant acknowledged his receipt of notification.

9.  On 12 July 1972, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he completed a conditional waiver in which he stated that he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel only if he received a general or honorable discharge contingent on receiving a discharge no less favorable than a GD.  He further elected not to make a statement in his own behalf.  

10.  On 2 November 1972, the applicant again consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he unconditionally waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel.  He further elected not to make a statement in his own behalf and acknowledged that he could, up until the date the separation authority approved his discharge, withdraw his waiver and request that a board of officers hear his case.  

11.  On 8 November 1972, the separation authority approved the applicant’s discharge and directed that he receive an UD.  On 15 November 1972, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant on the date of his separation confirms he completed a total of 1 year, 9 months, and 15 days of creditable active military service and that he accrued a total of 373 days of time lost due to AWOL and confinement.  

12.  On 31 May 1977, the SDRB voted to upgrade the applicant's discharge from an UD to a GD.  

13.  On 28 June 1978, the applicant’s case was reconsidered by the ADRB using the uniform standards established in Department of Defense Directive 1332-28.  The ADRB concluded that the GD issued to the applicant under the provisions of the SDRP did not warrant affirmation.  This determination was made based on the applicant's overall record of service.  The ADRB proceedings informed the applicant that while this decision did not change the discharge he now had, it could impact his ability to receive VA benefits.  

14.  The applicant provides third-party statements from co-workers who indicate that he is a very dedicated, personable, trustworthy, highly motivated person and worker.

15.  The Department of Defense (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. 
16.  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.  

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An UD was normally considered appropriate for members separating under these provisions. 

18.  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's contention that his initial upgrade of his discharge to a GD by the SDRB be affirmed so that he may receive benefits through the VA was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The third-party statements and other documents provided by the applicant that attest to his good character and outline his excellent post service conduct were also carefully considered.  However, while the good behavior outlined in these documents is noteworthy, this factor alone is not sufficiently mitigating to support granting the requested relief.  

3.  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 the rights of the applicant were fully protected throughout the separation process.  Further, the UD he initially received was appropriate based on his undistinguished record of service and his extensive disciplinary history.  

4.  The evidence of record also confirms that the discharge review process followed in this case was accomplished in accordance with the existing law and regulations in effect at the time, and it is concluded there was no error or injustice related to this process.  Notwithstanding the initial upgrade of his discharge by the SDRB, it is clear the 1978 determination of the ADRB not to affirm this upgrade under the uniform discharge review standards established in DOD Directive 1332-28 was the correct action to take based on the applicant's overall record of undistinguished service.  As a result, it is concluded that the GD issued to the applicant under the provisions of the SDRP does not warrant affirmation given his extensive disciplinary history and record of misconduct.

5.  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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 June 1978, the date his case was last reviewed by the ADRB.  Therefore, the time for him to file a request for correction of any error or injustice expired on 27 June 1981.  He failed to 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_  __X __  __X  _  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.




_____X___
          CHAIRPERSON




INDEX

CASE ID
AR20060010919
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2004/04/10
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR635-212 . . . . .  
DISCHARGE REASON
Unfitness
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.