IN THE CASE OF:	  

	BOARD DATE:	  11 June 2008

	DOCKET NUMBER:  AR20080005743 


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, affirmation of the 16 October 1967 discharge upgrade action of the Special Discharge Review Board (SDRB), which upgraded his undesirable discharge (UD) to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that three months prior to being sent to Republic of Vietnam (RVN), his brother died from a gunshot wound.  He claims that three months after arriving in the RVN, his granddad, who had raised him, died, and his wife began an affair and wanted a divorce.  He states that he became so depressed as a result of these events, he refused to work.  He states that he requested a hardship discharge, however, his request was denied and he was instead discharged with an UD.  He states that in 1977, the Army Discharge Review Board (ADRB) upgraded his UD to a GD, which qualified him for a 
G.I. Loan and health care at all Department of Veterans Affairs (VA) medical centers.  However, due to the fact that his GD was not affirmed, he does not qualify for these benefits and/or for compensation for the prostate cancer he has, which was related to Agent Orange exposure in the RVN.  He now requests that his GD be affirmed so that he may receive compensation and/or treatment through the VA for his prostate cancer.

3.  The applicant provides the following documents in support of his application:  Self-Authored Letter; Discharge Certificate; Separation Document (DD Form 214); Correction to DD Form 214 (DD 215); VA Decision; and National Personnel Records Center (NPRC) Letter, dated 12 May 2005.

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 he enlisted in the Regular Army and entered active duty on 8 May 1962.  He was trained in, awarded, and served in military occupational specialty (MOS) 94B (Cook).  

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he attained the rank of specialist five (SP5) on 1 September 1966, and that this is the highest rank he attained while serving on active duty.  His record also shows that he completed two tours of duty in Korea and that he served in the RVN from 29 August 1966 through 28 August 1967.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 7th Cavalry Regiment, performing duties in MOS 94B as a cook.  It also shows that during this RVN assignment, he received "Unsatisfactory" conduct and efficiency ratings.  His record documents no acts of valor or significant achievement.  

4.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 
of the Uniform Code of Military Justice (UCMJ) on the following four occasions for the offenses indicated:  8 June 1966, for disorderly conduct; 2 February 1967, for pass violation; 18 March 1967, for failure to go to his appointed place of duty at the prescribed time; and 2 April 1967, for being absent without leave (AWOL).

5.  On 6 June 1967, a Summary Court-Martial (SCM) found the applicant guilty of violating Article 86 and 92 of the UCMJ as follows:  Article 82, by failing to go to his appointed place of duty at the prescribed time on 28 May 1967; and Article 92 (two specifications), by violating a lawful general regulations.  The resultant sentence was a forfeiture of two-thirds of his pay, reduction to private/E-1 (PV1), and 40 days restriction. 

6.  On 23 July 1967, a Special Court-Martial (SPCM) found the applicant guilty of violating Articles 86, 89, 91, and 95 of the UCMJ as follows:  Article 86, by failing to go to his appointed place of duty at the prescribed time; Article 89, by being disrespectful to his superior noncommissioned officer (NCO); Article 91, by disobeying a lawful order from his superior NCO; and Article 95, by breaking arrest.  The resulting sentence was a forfeiture of $91.00 per month for six months.  

7.  On 19 August 1967, a SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from 6 to 7 August 1967.  The resultant sentence was a forfeiture of $64.00 and confinement at hard labor for 1 month.

8.  The applicant's record is void of any documents that indicate he ever requested a hardship discharge while serving on active duty.  

9.  On 28 June 1967, after having been notified of the intent to recommend his separation under the provisions of Army Regulation 635-212, by reason of unfitness, the applicant consulted with legal counsel.  After being advised of the basis for the contemplated separation, its effects and the rights available to him, the applicant waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and his right to counsel.  He further elected not to make a statement in his own behalf.  

10.  On 12 August 1967, the unit commander recommended the applicant be separated for unfitness under the provisions of paragraph 6a (1), 
Army Regulation 635-212.  He cited the applicant's negative attitude towards the military service as evidenced by his hostility and disrespect towards superiors and unwillingness to obey orders or instructions.  He further cited the applicant's acceptance of four Article 15's and his SCM and SPCM convictions as his reasons for taking the action.

11.  On 8 October 1967, the separation authority approved the applicant’s discharge and directed that he receive an UD.  On 16 October 1967, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant on the date of his separation confirms he completed a total of 3 years, 7 months, and 9 days of creditable active military service, and that he accrued a total of 
33 days of time lost due to AWOL and confinement.  

12.  On 13 January 1969, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence determined that he had been properly and equitably discharged, and it voted to deny his request for a change to the characterization of his service and/or to the reason of his separation.  

13.  On 30 June 1977, the ADRB voted to upgrade the applicant's discharge to a GD under the criteria of the Special Discharge Review Program (SDRP).  

14.  On 13 November 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.  

15.  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. 

16.  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.  The law 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 he had initially requested a hardship discharge due to family problems but was instead discharged with a UD was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The applicant's record is void of any documents showing he ever requested a hardship discharge and/or that his request was denied.  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 June 1977, under the provisions of the SDRP; however, during a November 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, 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 undistinguished service.  As a result, it is concluded that the GD issued to the applicant under the provisions of the SDRP does not warrant affirmation given his extensive disciplinary history and record of misconduct.

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.

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)                                         AR20080005743



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005743


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1