RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 June 2007
      DOCKET NUMBER:  AR20060017103


      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            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Chester A. Damian             |     |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, in effect, that his upgraded discharge be
affirmed.

2.  The applicant states that his discharge was upgraded to general under
honorable conditions in July 1977.  When he called the Department of
Veterans Affairs (VA), they had his discharge down as dishonorable.

3.  The applicant provides a copy of his re-issued DD Form 214 (Report of
Separation from Active Duty); a General Discharge Certificate; and a VA
Form 21-4138 (Statement in Support of Claim).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 December 1978, the date the Army Discharge Review Board
(ADRB) failed to affirm his upgraded discharge.  The application submitted
in this case is dated 15 November 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 enlisted in the Regular Army on 29 June 1971.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 67A (Aircraft Maintenance
Apprentice).  He arrived in Vietnam on or about 19 February 1972

4.  On 9 November 1972, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for disobeying a lawful order
not to leave post while the red alert status existed without written
authority and for disobeying a lawful order by attempting to leave Can Tho
Army Airfield while not in possession of a valid control pass.

5.  The applicant departed Vietnam on 4 December 1972.  His awards from
Vietnam included the Army Commendation Medal and ten awards of the Air
Medal.

6.  On 12 January 1973, the applicant departed absent without leave (AWOL).
 He returned to military control on 18 July 1977.  His discharge packet is
not available.  He was discharged on 18 July 1977 with a discharge under
other than honorable conditions.  He had completed 1 year, 6 months, and 12
days of creditable active service and had 533 days of lost time plus 1,115
days of lost time subsequent to his normal expiration of term of service.

7.  On 18 October 1977, the ADRB upgraded the applicant’s discharge to
general under honorable conditions under the Special Discharge Review
Program (SDRP).

8.  By letter dated 7 July 1978, the ADRB informed the applicant that a
preliminary review of his discharge determined that he would not qualify
for [further] upgrading [of his discharge] under the new uniform standards
for discharge review.  He was informed that the action would not change the
character of discharge awarded to him under the SDRP; however, under the
law the preliminary determination meant that now he might not be
automatically eligible for benefits from the VA.

9.  By letter dated 7 December 1978, the ADRB informed the applicant that
the previous upgrading of his discharge had been re-reviewed as required by
Public Law 95-126.  As a result, the ADRB determined that he did not
qualify for upgrading under the new uniform standards for discharge review
and, accordingly, his upgraded discharge under the SDRP was not affirmed.

10.  The Department of the Army SDRP was based on a memorandum from
Secretary of Defense Brown and is often referred to as the “Carter
Program.”  It mandated the upgrade of individual cases in which the
applicant met one of several specified criteria and when the separation was
not based on a specified compelling reason to the contrary.  The ADRB had
no discretion in such cases other than to decide whether recharacterization
to fully honorable as opposed to a general discharge was warranted in a
particular case.  An individual who had received a punitive discharge was
not eligible for consideration under the SDRP. Absentees who returned to
military control under the program were eligible for consideration after
they were processed for separation.  Individuals could have their
discharges upgraded if they met any one of the following criteria: wounded
in action; received a military decoration other than a service medal;
successfully completed an assignment in Southeast Asia; completed alternate
service; received an honorable discharge from a previous tour of military
service; or completed alternate service or excused therefrom in accordance
with Presidential Proclamation (PP) 4313 of 16 September 1974.

11.  Public Law 95-126 provided in pertinent part for a “Relook Program.”
All cases upgraded from under other than honorable conditions under the
SDRP or extension to PP 4313 had to be relooked and affirmed or not
affirmed under uniform standards.  Two of the principal features of Public
Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized
absence to other reasons (e.g., conscientious objector, deserters) for
discharge which act as a specific bar to eligibility for VA benefits.  Such
absence must have been the basis for discharge under other than honorable
conditions and is computed without regard to expiration of term of service;
and (2) prospective disqualification for receipt of VA benefits for those
originally qualifying as a result of upgrade by Presidential Memorandum of
19 January 1977 or the SDRP, unless an eligibility determination is made
under the published uniform standards and procedures.

12.  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 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 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 ADRB upgraded the applicant’s discharge from under other than
honorable conditions to general under honorable conditions under the SDRP
in October 1977.  However, in December 1978 the ADRB determined that he did
not qualify for upgrading under the new uniform standards for discharge
review and, accordingly, his upgraded discharge under the SDRP was not
affirmed.

2.  The applicant’s primary complaint appears to be with the VA.  It
appears VA records may still reflect the applicant’s discharge as under
other than honorable conditions because the ADRB did not affirm his
upgraded discharge.  The applicant should be mindful that he had well over
180 days of continuous absence.  Under Public Law 95-126, 180 days of
continuous unauthorized absence acts as a specific bar to eligibility for
VA benefits.  The Army has no jurisdiction over the VA, which operates
under its own policies and procedures.

3.  In addition, the applicant has provided insufficient evidence to show
why his discharge as upgraded by the ADRB should be affirmed by this Board.

4.  Records show the applicant exhausted his administrative remedies when
his case was last reviewed by the ADRB on 7 December 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 6 December 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __jrs___  __cad___       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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017103                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070605                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19770718                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr Schwartz                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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