IN THE CASE OF:	  

	BOARD DATE:	  17 June 2008

	DOCKET NUMBER:  AR20080004963 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that he served with valor in the Republic of Vietnam (RVN) and although he made mistakes, his combat service warrants an upgrade of his discharge in order to allow him to receive Department of Veterans Affairs (VA) benefits. 

3.  The applicant provides an ARCOM with "V" Device award order and his separation document (DD Form 214) in support of 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's record shows that he was initially inducted into the Army and entered active duty on 2 January 1969.  He completed advanced individual training (AIT) at Fort Sam Houston, Texas, and was awarded military occupational specialty (MOS) 91A (Medical Corpsman).  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the RVN for 4 months between June and September 1969.  It also shows that the highest rank to which the applicant was promoted and in which he served on active duty was private first class (PFC), which he first attained on 4 August 1969.  

4.  The applicant's record confirms that while serving in the RVN, the applicant was awarded the ARCOM with "V" Device, for heroism in connection with military operations against a hostile force on 22 August 1969.  It also shows that during his active duty tenure, he also earned the National Defense Service Medal, Vietnam Service Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

5.  On 5 September 1969, while serving in the RVN, the applicant was honorably discharged for the purpose of enlistment in the Regular Army (RA), and on 
6 September 1969, he enlisted in the RA for 3 years.  

6.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on at least two separate occasions between 19 June 1969 and 10 November 1971, and two separate special courts-martial (SPCM) convictions.  It also includes his accrual of 546 days of time lost due to being absent without leave (AWOL) and in confinement during seven separate periods between 9 October 1969 and 8 November 1971.  

7.  On 9 October 1969, after failing to return to the RVN from reenlistment leave, the applicant was declared AWOL.  He remained AWOL for 124 days until returning to military control at Fort Ord, California, on 10 February 1970.  

8.  On 25 February 1970, an SPCM found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 9 October 1969 through on or about 10 February 1970.  The resultant sentence was confinement at hard labor for 45 days (15 days suspended), forfeiture of $50.00 per month for 3 months, and reduction to private/E-1 (PV1).  

9.  On 29 April 1971, an SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 19 May 1970 through on or about 
8 March 1971.  The resulting sentence was confinement at hard labor for
3 months, forfeiture of $90.00 per month for 3 months, and reduction to PV1.  
10.  On 19 November 1971, the commander notified the applicant of the intent to process him for separation under the provisions of Army Regulation 635-212, by reason of unfitness.  The applicant consulted with legal counsel and was advised of the basis for the contemplated action, and of its effects.  Subsequent to this counseling, the applicant elected to waive consideration of his case by a board of officers and his right to personal appearance before a board of officers, and he elected not to submits statements in his own behalf.  

11.  The separation authority approved the applicant's discharge and directed he receive an undesirable discharge (UD).  On 25 January 1972, the applicant was discharged accordingly, in the rank of PV1.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 6 months, and 27 days of creditable active military service, and that he accrued 546 days of time lost due to AWOL and confinement.  

12.  On 24 February 1977, the Army Discharge Review Board (ADRB) voted to upgrade the applicant's discharge to a general, under honorable conditions discharge (GD), under the provisions of the Special Discharge Review Program (SDRP) and Presidential Proclamation 4313.  

13.  On 30 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 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 in SEA or in the Western Pacific in support of operations in SEA; 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. 

15.  On 8 October 1977, Public Law 95-126 added the provision 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.  16.  Public Law 95-126 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.  It further required that 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 undesirable discharge was normally considered appropriate for members separating under these provisions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded in order for him to receive VA benefits based on his RVN service was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms the applicant was separated with an UD, by reason of unfitness, based on his extensive disciplinary history and his repeated incidents of misconduct.  It also shows that the ADRB upgraded the UD to a GD in February 1977, under the provisions of the SDRP; however, during a June 1978 review, the ADRB voted not to affirm the upgrade action under uniform discharge standards established in 1978, to comply with Public Law 95-126.

3.  The evidence of record 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.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, notwithstanding his RVN service, the UD he received accurately reflected his overall record of service at the time it was issued.    

4.  Notwithstanding the initial upgrade of his discharge under the SDRP based on his service in the RVN, it is clear that the 1978 determination of the ADRB not to affirm this upgrade action 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 service.  As a result, it is concluded that his overall record of service does not support affirmation of the GD issued to him under the provisions of the SDRP, and does not support an upgrade of his discharge to an HD, as he now requests.  
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.  The administration of VA medical benefits is not within the purview of this Board.  The applicant is advised to contact the VA regarding his entitlement to medical care for service-connected medical conditions.  

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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004963



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ABCMR Record of Proceedings (cont)                                         AR20080004963


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