RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080001965 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 discharge upgrade be affirmed.

2.  The applicant states that his discharge was racially directed and unethical.  The nature of the incident that culminated in his being court-martialed happened while he was doing his tour of guard duty.  He confronted two white men who were intoxicated and trying to enter the post clandestinely.  He told them not to move, and fired off a warning shot when they began to curse him and utter racial slurs.  The Officer of the Day asked him to sign a report, and he refused.  He was told he was being court-martialed for refusing to follow a direct order.  He is not aware of any action taken against the two white enlisted men.  He did not have a lawyer present during the entire proceedings.  

3.  The applicant states that he never received any official notification in 1979 that the Department of Defense’s 1977 decision to upgrade his discharge was reversed.  He was not aware of the reversal for 28 years.  

4.  The applicant provides the 21 documents listed on the Attachments and Evidence Brief enclosed with his application.

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 enlisted in the Regular Army on 20 November 1963.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).

3.  On 3 March 1964, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order to join his platoon.

4.  On 1 April 1964, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) from on or about 28 March to on or about 31 March 1964.

5.  On or about 27 April 1964, the applicant arrived in Korea.  

6.  On 24 June 1964, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order.

7.  On 8 July 1964, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.

8.  On 19 October 1964, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his appointed place of duty.

9.  On 25 January 1965, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty and for being disrespectful to a noncommissioned officer (NCO).

10.  On 16 April 1965, the applicant was convicted, in accordance with his pleas, by a special court-martial of two specifications of disobeying a lawful order; one specification of being disrespectful in language toward his superior NCO; two specifications of violating a lawful general order; one specification of wrongfully communicating a threat to injure an NCO by cutting his throat; and one specification of assault.  He was sentenced to be reduced to pay grade E-1 and to forfeit $55.00 pay for 6 months.

11.  On 16 April 1965, the applicant was given a psychiatric examination.  He was found to be mentally able to distinguish right from wrong and to adhere to the right and to be mentally able to understand the nature of board proceedings and to testify in his own defense.  He was diagnosed with a character and behavior disorder (inadequate personality).  

12.  On 22 April 1965, the applicant’s commander recommended he be separated under the provisions of Army Regulation 635-208 for unfitness.

13.  In recommending approval of the commander’s request to discharge the applicant, the Brigade Commander noted that the applicant had served under three company commanders and two platoon sergeants.  

14.  On 22 April 1965, the applicant acknowledged that he was notified by his commanding officer that he was recommending the applicant for discharge under the provisions of Army Regulation 635-208 for unfitness.  The applicant elected not to submit a statement in his own behalf.  He desired that his case be referred to a board of officers.

15.  On 28 May 1965, a board of officers convened.  The applicant appeared before the board with counsel.  

16.  On 1 June 1965, the board of officers found the applicant to be unsuitable for further military service because of frequent incidents of a discreditable nature with military authorities, recommended his discharge because of unfitness under the provisions of Army Regulation 635-208, and recommended he be furnished an Undesirable Discharge.  

17.  On 10 June 1965, the appropriate authority approved the findings of the board and directed the applicant receive an Undesirable Discharge Certificate.

18.  On 10 July 1965, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208 for unfitness, with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 1 year, 7 months, and 21 days of creditable active service. 

19.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

20.  On 8 June 1977, the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge to general under honorable conditions under the Special Discharge Review Program (SDRP).

21.  By letter dated 7 November 1978, the applicant was notified by the ADRB that a preliminary review of his discharge had been completed by the Discharge Review Board as required by Public Law 95-126.  As a result of the review, the ADRB made a preliminary determination that he would not qualify for upgrading under the new uniform standards for discharge review.  He was informed that this action would not change the character of discharge awarded to him under the SDRP; however, under the law, the preliminary determination meant that he might not be automatically eligible for benefits from the Veterans Administration (VA).  He was notified that if did not respond to the letter by 22 December 1978 his case would be finalized as nonaffirmed.  The applicant apparently did not respond to the ADRB’s letter, and the ADRB, having re-reviewed the applicant’s record as required by Public Law 95-126, determined he did not meet the uniform standards and denied affirmation.  

22.  By letter dated 25 January 1979, the Office of The Adjutant General and the Adjutant General Center notified the applicant that the previously upgrading of his discharge had been re-reviewed by the ADRB, and the ADRB determined that he did not qualify for upgrading under the new uniform standard for discharge review.  Accordingly, his upgraded discharge was not affirmed.  He was informed that the determination in no way changed or modified the upgraded discharge he had previously received.  However, because of a new law, he would not be able to use that discharge to qualify for benefits under the VA.

23.  By letter dated 29 January 1979, the VA notified the applicant that his special upgraded discharge was carefully reviewed and the VA determined that his discharge of 10 July 1965 was issued under conditions which constituted a bar to the payment of VA benefits.

24.  By letter dated 30 November 2007, the VA informed the applicant it determined that his military service did not entitle him to VA benefits.  The letter also stated, “This decision was based on the US Army Discharge Review Board Case Report and Directive, which reversed the favorable decision that was previously rendered by the DOD Discharge Review Program (Special).”

25.  By letter dated 5 December 2007, the VA informed the applicant that the Army upgraded his character of service to under honorable conditions under the SDRP in July 1977.  The letter also stated, “However, your special upgraded discharge was reviewed again in 1979, and the original characterization of service, Under Dishonorable Conditions, was reinstated.”

26.  The Department of the Army Special Discharge Review Program 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. 

27.  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 the extension to Presidential Proclamation 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; 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 was made under the published uniform standards and procedures.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not discharged because of his court-martial.  He was administratively discharged for unfitness due to a long history of misconduct.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant contended that he never received any official notification in 1979 that the 1977 decision to upgrade his discharge was “reversed” and was not aware of the “reversal” for 28 years.  That may have been the case.  The ADRB’s letter dated 7 November 1978 and the Office of The Adjutant General and the Adjutant General Center’s letter dated 25 January 1979 would have been sent to his last known address, and he might have moved in the meantime.

3.  It is noted that the VA’s 30 November 2007 and 5 December 2007 letters  mis-cited the effect of the ADRB’s 1978 decision.  The ADRB did not “reverse” the favorable decision that was previously rendered under the SDRP and it did not “reinstate” his original under other than honorable conditions characterization of service.  

4.  Public Law 95-126 required that the applicant’s discharge be further reviewed to determine if he met the criteria to have his upgraded discharge affirmed.  In 1978, the ADRB simply did not affirm the earlier decision to upgrade his discharge.  Based upon the applicant’s record of misconduct during his short period of service, it appears the ADRB made a proper decision not to affirm the upgrade.  

5.  As the Office of The Adjutant General and the Adjutant General Center’s       25 January 1979 letter informed the applicant, the determination not to affirm the upgrade in no way changed or modified the upgraded discharge he had previously received.  However, because of Public Law 95-126 he would not be able to use that discharge to qualify for benefits under the VA.  Any concerns he has regarding his VA benefits should be addressed to the VA.
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 for correction of the records of the individual concerned.




      ___      x_______
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001965


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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