RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2008
	DOCKET NUMBER:  AR20070017107 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Donald L. Lewy

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, affirmation of the characterization of his service which was upgraded by the Department of Defense (DOD) Special Discharge Review Program (SDRP). 

2.  The applicant states, in effect, that he served in the Army from November 1966 to January 1969 and received an under other than honorable conditions discharge and that his discharge was upgraded to a general, under honorable conditions discharge.  However, his Veterans Administration (VA) benefits have been denied and, since President Carter's program upgraded his discharge, he wants his VA benefits restored.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Report of Separation from Active Duty), dated 17 January 1969.

	b.  DA Form 215 (Correction to the DD Form 214), dated 13 July 1978.

	c.  Two self-authored letters, dated 20 January 2008.

	d.  Extract from an Internet Article titled: "Veterans Benefits Statement on Signing S. 1307 Into Law."

	e.  Standard Form 89 (Report of Medical History), dated 28 September 1966.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant's records show that he enlisted in the Regular Army on 25 November 1966 for a period of 3 years.  He completed basic combat training at Fort Polk, Louisiana, and proceeded to Fort Gordon, Georgia, to attend advanced individual training for military occupational specialty (MOS) 36G (Manual Central Office Repairer).

3.  The applicant's records show that while attending AIT, he departed his unit in absent without leave (AWOL) status on 1 June 1967.  He was subsequently dropped from the Army rolls (DFR) on 1 July 1967.  He returned to military control and was placed in pre-trial confinement at Fort Ord, California, on 19 October 1967.

4.  On 24 January 1968, the applicant pled guilty at a Special Court-Martial to two specifications of being AWOL during the period on or about 1 June 1967 through on or about 19 October 1967 and during the period on or about 4 January 1968 through on or about 8 January 1968.  The Court sentenced him to confinement at hard labor for six months, forfeiture of $64.00 pay per month for six months, and reduction to the grade of private/E-1.  The convening authority approved the sentence, but suspended the six-month confinement sentence for 6 months on 24 January 1968. 

5.  On 12 June 1968, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 26 February 1968 through on or about 31 May 1968.  The Court sentenced him to confinement at hard labor for six months and forfeiture of $68.00 pay per month for six months.  The convening authority approved the sentence and ordered it executed on 12 June 1968. 

6.  Headquarters, Troops Command, United States Army Training Center, Fort Ord, California, dated 24 July 1968, Special Court-Martial Order Number 2028, dated 24 July 1968, suspended the unexecuted portion of the sentence to confinement at hard labor for six months for a period of six months.

7.  On 27 November 1968, the applicant submitted an application for discharge for the convenience of the Government under the provisions of chapter 5 of Army Regulation 635-200 (Personnel Separations).  In his application, the applicant stated that at the time of his induction into the service, he did not meet the applicable medical fitness standards for induction in effect at the time.  The applicant's records do not reveal the disposition of this application.


8.  On 13 December 1968, by memorandum, the applicant's immediate commander informed the applicant that he was being considered for elimination from the service for homosexuality in accordance with paragraph 16a of Army Regulation 635-89 (Personnel Separations-Homosexuality).  The applicant acknowledged receipt of this notification memorandum on the same day. 

9.  On 16 December 1968, by memorandum, the applicant's immediate commander requested the applicant's elimination from the service for homosexuality.  He further recommended an Undesirable Discharge Certificate.

10.  On 17 December 1968, the applicant's intermediate commander concurred with the immediate commander's recommendation and recommended approval of the applicant's elimination from the service. 

11.  On 10 January 1969, the separation authority approved the applicant's elimination from the Army and directed that he be separated under the provisions of Army Regulation 635-89 with an Undesirable Discharge Certificate and that he be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 17 January 1969.  The DD Form 214 he was issued at the time shows he was discharged with an "Under Conditions Other Than Honorable" characterization of service.  The form also shows that the applicant completed 1 year and 4 months of creditable active service and had 299 days of lost due to AWOL and confinement.

12.  On 15 July 1977, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to a General Discharge under the Special Discharge Review Program (SDRP).  The separation document that the applicant was furnished at the time of his discharge was voided and he was furnished with a new DD Form 214 which reflected the characterization of his service as being under honorable conditions, with issuance of a General Discharge Certificate.

13.  On 20 July 1978, the ADRB conducted a second review of the applicant's General Discharge under the uniform standards provision of Public Law 95-126.  The ADRB voted not to affirm the applicant's discharge due to his numerous acts of indiscipline.  The applicant was informed that under the new law his discharge would not qualify him for benefits administered by the Department of Veterans Affairs.

14.  In his self-authored statement, the applicant questions the Army's lack of concern for its veterans and asks that the Army take his request seriously. 

15.  Army Regulation 635-89, in effect at the time, set forth the basic authority, criteria, and procedures for the disposition of personnel who are homosexuals and military personnel who engaged in homosexual acts, or who were alleged to have engaged in such acts.  The policy in effect at the time was that personnel who voluntarily engaged in homosexual acts, irrespective of sex, would not be permitted to serve in the Army in any capacity, and their prompt separation as a Class I, II or III homosexual, was mandatory.  The character of separation of a homosexual would be determined without regard to his component, sex, or status, and would be based upon consideration of all relevant facts in the case, including the individual's record of service.

16.  The 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.  

17.  Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313   or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge.  The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.  

18.  A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension).  This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) records free of any compelling reason to deny relief.  This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals.  Whether the individuals had performed alternate service was not an issue to be considered.  

19.  The Department of the Army Special Discharge Review Program (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 there from in accordance with PP 4313 of               16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.  

20.  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, homosexuals) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration 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.

21.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct 

and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

22.  Army Regulation 635-200, paragraph 3-7b, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's elimination from the Army under the provisions of Army Regulation 635-89 for homosexuality, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.

2.  The ADRB's initial review of the applicant's discharge was under the provisions of the SDRP.  The ADRB voted to upgrade the applicant's discharge to a General Discharge and the proceedings were conducted in accordance with law and procedures under the SDRP.

3.  The ADRB's second review of the applicant's General Discharge under the provisions of Public Law 95-126 was to determine whether the discharge should be affirmed.  The ADRB voted not to affirm the applicant's General Discharge.

4.  There is no 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.  At that time, the applicant was advised that a discharge upgraded under the SDRP may not qualify him for VA benefits.

5.  The evidence of record clearly shows that the applicant had an extensive disciplinary record.  He pled guilty and was convicted at two Special Courts-Martial due to a pattern of AWOL.  Notwithstanding the original determination by the ADRB, the official record shows that his period of service was not satisfactory and that his General Discharge under the provisions of AR 635-89 for homosexuality should not be affirmed.


6.  Based on his record of indiscipline and unsatisfactory performance, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Given the above, there is no basis for affirming the applicant's General Discharge.

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __ecp___  __dll___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.