RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      1 March 2007
      DOCKET NUMBER:  AR20060011533


      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. Gerard W. Schwartz            |     |Director             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas M. Ray                 |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. James R. Hastie               |     |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, the spouse of the deceased Former Service Member (FSM)
requests, in effect, that the FSM’s upgraded discharge be affirmed.

2.  The applicant states, in effect, that the FSM’s discharge was upgraded,
but she is still barred from Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a copy of the FSM’s Report of Separation from
the Armed Forces of the United States (DD Form 214), and a copy of the
FSM’s Certificate of Death in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 25 May 1977.  The application submitted in this case is
dated
10 May 2006, but was received on 25 July 2006.

2.  The applicant’s record shows that the FSM initially enlisted in the
Regular Army and entered active duty on 13 October 1964, for a period of 4
years.  He was initially trained in and awarded military occupational
specialty (MOS) 11C (Infantryman Indirect Fire Crewmember).  The highest
grade he attained was pay grade E-4.

3.  On 22 July 1965, the FSM accepted nonjudicial punishment (NJP), for
being disrespectful toward his superior noncommissioned officer.  His
imposed punishment was 14 days restriction and 14 days extra duty.

4.  On 29 September 1965, the FSM was convicted by a Special Court-Martial
(SPCM) of being absent without leave (AWOL) from 1 to 19 August 1965 and
for being disrespectful to his superior noncommissioned officer.  He was
sentenced to confinement at hard labor for 6 months (suspended for 5
months), a forfeiture of $60.00 pay per month for 6 months (suspended for 3
months), and a reduction to pay grade E-1 (suspended for 3 months).

5.  On 11 October 1967, the applicant was convicted by an SPCM for being
AWOL from 5 July to 2 September 1967.  He was sentenced to a reduction to
pay grade E-1, confinement at hard labor for 4 months, and a forfeiture of
$86.00 pay per month for 4 months.  On 20 October 1967, only so much of the
sentence as provided for a forfeiture of $50.00 pay per month for 4 months
was approved and duly executed, but the execution of the sentence to
confinement at hard
labor, and that portion of the reduction to private E-1, which was in
excess of a reduction to the grade of Private First Class was suspended
until 10 February 1968, unless the suspension is sooner vacated.

6.  On 11 January 1968, the FSM accepted NJP for being AWOL from
8 November 1967 to 1 January 1968.  His imposed punishment was a forfeiture
of $89.00 pay per month for 2 months.  On the same day, the unexecuted
portion of the sentence to confinement at hard labor for 4 months and the
reduction to pay grade E-1 was duly executed.

7.  On 26 January 1968, a physical and a mental evaluation found the FSM
fit for retention.

8.  On 9 February 1968, the company commander notified the FSM that he was
being recommended for discharge under the provisions of Army Regulation
635-212, for unfitness.  The commander stated that the applicant had been
given plenty of opportunities to function as a Soldier; however, he did not
cooperate to any degree.  The commander further stated that the FSM has
disrupted the morale and discipline within the unit.

9.  On 12 February 1968, the FSM acknowledged notification of the action to
separate him under the provision of Army Regulation 635-212, for unfitness.
 The FSM was advised by legal counsel of the basis for the contemplated
separation action and the rights available to him.  He waived
consideration, personal appearance, and representation before a board of
officers.  He elected not to submit statements in his own behalf.

10.  On 20 February 1968, the Commanding General approved the FSM’s
separation for unfitness, and directed that he receive an Undesirable
Discharge (UD).  On 1 March 1968, the FSM was discharged accordingly.  The
DD Form 214 he was issued shows he completed a total of 2 years, 7 months,
and
19 days of active military service.  The FSM received the following awards
during his active duty service:  the National Defense Service Medal (NDSM);
the Vietnam Service Medal (VSM); the Combat Infantryman Badge (CIB); the
Republic of Vietnam Campaign Medal; the Parachutist Badge; the Expert
Marksmanship Qualification Badge with Rifle Bar; and the 1st Class Gunner
[now known as Expert Marksmanship] Qualification Bar with Machinegun Bar.

11.  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.  A UD was normally considered appropriate
for members separating under these provisions; however, an honorable or
general discharge could be awarded under special circumstances.

12.  On 7 April 1977, the Army Discharge Review Board (ADRB) under the DOD
Discharge Review Program (Special) upgraded the applicant’s discharge to
Under Honorable Conditions (General) (GD), effective 25 May 1977.

13.  On 4 April 1977, the 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.

14.  In October 1978, Public Law 95-126 was enacted.  This legislation
denied VA 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 were 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.

15.  On 21 April 1978, the ADRB re-reviewed the applicant’s discharge and
did not affirm the applicant’s discharge under Uniform Standards.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant were carefully considered.  However,
there is insufficient evidence to support granting the requested relief.
The FSM’s discharge was upgraded on 25 May 1977, because he met certain
requirements such as his completion of a normal tour of duty in Southeast
Asia.  However, on 21 April 1978, upon a re-review the SDRP did not
affirmed the FSM’s discharge
and because his discharge was not affirmed, he was not entitled to VA
benefits.  Therefore, there is no evidence nor has the applicant provided
any compelling evidence to warrant further relief beyond that already
provided by the ADRB.

2.  The record further confirms that all requirements of law and regulation
were met and the FSM’s rights were fully protected throughout the
separation process. Finally, the record shows that the FSM’s discharge
accurately reflects his overall record of undistinguished service.

3.  Therefore, 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

__TMR __  ___JCR _  ___JRH _  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 for correction of the
records of the individual concerned.




                                        __Thomas M. Ray____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMD                                 |
|DATE BOARDED            |2007/03/01                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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