IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080011603 


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 discharge (GD) be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his GD should be upgraded to reflect  honorable service so that he may be able to get help from the Department of Veterans Affairs (VA).  He is suffering greatly from the effects of serving in combat and is seeking help with his problems from that conflict.  He is not stating that the record is in error in any way because he did commit certain actions that he should not have but he is in great need of help.  He adds that he is in need of a great deal of help because of Post Traumatic Stress Disorder from being in combat.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and a copy of DD Form 2067 (Case Report and Directive/Discharge Review Board Statement of Findings, Conclusions & Reasons) in support of his request.

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 he was inducted on 18 January 1968.  He was trained as a cook, in military occupational specialty (MOS), 94B.  He was promoted to pay grade E-3 on 1 June 1968.

3.  Between 26 September 1968 and 18 August 1969, he received nonjudicial punishment (NJP) on five occasions under Article 15, of the UCMJ (Uniform Code of Military Justice), for violation of a lawful regulation, for failure to obey a lawful order from a noncommissioned officer, for being disrespectful towards a commissioned officer and noncommissioned officer, and for being absent from his appointed place duty on two occasions.  His punishments consisted of a reduction to pay grade E-2, a forfeitures of pay, restriction and extra duty. 

4.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was absent without leave (AWOL) from 22 October to 20 November 1969 (30 days), from 21 November to 2 December 1969 (12 days), from 29 December 1969 to 5 January 1970 (8 days), and from 12 to 14 January 1970 (3 days).  

5.  On 16 February 1970, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and he might be ineligible for many or all benefits administered by the VA if an undesirable discharge were issued.  He waived his rights and elected not to submit a statement in his own behalf.  [A charge sheet for violations that precipitated this action is not available for the Board's review].

6.  Charges were preferred against the applicant on 3 March 1970 for being AWOL from 26 to 27 January 1970, from 2 to 3 February 1970, from 24 to 26 February 1970, and for being AWOL from 28 February to 3 March 1970.

7.  On 17 March 1970, the separation authority approved the applicant's request for discharge and recommended that he be furnished an undesirable discharge and reduced to the lowest enlisted grade.  





8.  The applicant was discharged in the rank of private, pay grade E-1, on
27 March 1970.  He had a total of 2 years and 10 days of net active service and 53 days of lost time due to being AWOL.

9.  On 10 June 1977, the applicant’s undesirable discharge was upgraded under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP).  

10.  On 5 September 1978, the applicant was informed that the Army Discharge Review Board (ADRB) could not affirm his DOD SDRP upgraded discharge under review standards as required by Public Law 95-126.  He was also advised that this action did not change the discharge that he now has, but it could impact his ability to acquire VA benefits.  At that time, he was also advised of the reasons for that board’s decision.

11.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate.  

12.  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, 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.

13.  The SDRP, often referred to as the "Carter Program," was announced on 29 March 1977.  The program mandated upgrade of administrative discharges if the applicant met one of seven specified criteria to include various aspects of service in Vietnam.  Reasons for granting an upgrade under secondary criteria include age, aptitude, education level, alcohol/drug problem, record of citizenship, etc.

14.  On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

15.  Public Law 95-126, enacted on 8 October 1977, provided generally, that no 
VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD SDRP.  It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases.  The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had an established pattern of misconduct.  He went AWOL on several occasions, received one summary court-martial, and charges were preferred against him for four of his periods of being AWOL.  He accumulated a total of 53 days of lost time due to being AWOL.  He was issued an undesirable discharge, characterized as an under other than honorable conditions (UOTHC) discharge.

2.  The applicant's voluntary request for separation, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, appears to have been administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge was made under coercion or duress. 

3.  The applicant’s undesirable discharge was upgraded to a GD under the SDRP and a new separation document was prepared and forwarded to him.  
The applicant’s GD was not affirmed under the provisions of discharge review standards established by the Department of the Army in accordance with Public Law 95-126.   

4.  The evidence shows that the applicant is now requesting, in effect, that his GD be affirmed and upgraded to a honorable discharge to enable him to obtain VA benefits.  
5.  The Board does not change the character of service for the purpose of enabling former service members to qualify for VA benefits.  The Board has no authority to direct the VA to award benefits.  However, most VA benefits are based on an individual's characterization of service. 

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20080011603



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ABCMR Record of Proceedings (cont)                                         AR20080011603



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