IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012931 


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 undesirable discharge, which was upgraded to a general, under honorable conditions discharge (GD) by the Department of Defense (DoD) Special Discharge Review Program (SDRP), be affirmed.  

2.  The applicant states, in effect, that his discharge was already upgraded to a GD. 

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 29 May 1968, the applicant was inducted into the Army of the United States.  He was trained in, awarded, and served in military occupational specialty (MOS) 11D (Armor Intelligence Specialist).  On 29 July 1969, the applicant enlisted for a period of 3 years.  He attained the grade of private first class (PFC)/ E-3.

3.  On 3 March 1970, a special court-martial convicted the applicant of being absent without leave (AWOL) from 1 October 1969 – 9 February 1970.  The resultant sentence included confinement at hard labor for 1 month, a forfeiture of $50.00 pay per month for 2 months, and a reduction to private (PV1)/E-1. 
 
4.  The applicant had 2 additional periods of AWOL:  from 9 February –
27 March 1970 and 14 May – 1 October 1971.  He was confined by military authorities on 2 October 1971.

5.  On 11 November 1971, the applicant was charged with AWOL from 13 April 1970 – 12 April 1971 and from 14 May – 1 October 1971.  

6.  On 26 November 1971, while in military confinement, the applicant consulted with counsel and the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant elected not to submit a statement in his own behalf.  

7.  On 7 December 1971, the applicant was released from confinement.  On 
22 December 1971, the separation authority approved the applicant's request for discharge and directed he be issued an under other than honorable conditions discharge.

8.  Accordingly, the applicant was discharged on 3 January 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He was credited with 5 months and 6 days of total active service during the period under review.  His service was characterized as under other than honorable conditions on his DD Form 214 (Report of Separation from Active Duty).  He had 729 days of lost time due to AWOL and military confinement.

9.  On 20 April 1977, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge to a general discharge under the provisions of the DoD SDRP.  The ADRB panel reviewed his case and determined that the applicant met the primary criteria under the SDRP and unanimously voted to upgrade his discharge to a GD under the SDRP.  On 5 July 1977, the ADRB dispatched a letter to the applicant informing him that his discharge had been upgraded to a GD under the SDRP.  The separation document that the applicant was furnished at the time of his discharge was voided and he was furnished a new DD Form 214 which reflected the character of his service as under honorable conditions.

10.  On 25 October 1978, the ADRB conducted a second review of the applicant's GD under the uniform standards for discharge review, in effect at that time, and unanimously voted not to affirm the applicant's discharge because of serious charges under the Uniform Code of Military Justice (AWOL) which resulted in his discharge.  The applicant was informed in a letter, dated
15 November 1978 that the ADRB's decision would affect his eligibility for benefits under the Department of Veterans Affairs (DVA). 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  On 4 April 1977, the DoD directed the Services to review all less than fully honorably administrative discharges issued between 4 August 1964 and
28 March 1973.  This program, known as the DoD SDRP required, in the absence of compelling reasons to the contrary, that a discharge to either honorable of 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 these 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.  


13.  In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to DVA benefits, unless they had been entitled to such benefits before their SDRP review.

14.  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.  Evidence shows that the applicant was properly discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

2.  The evidence of record shows that the applicant served honorably from 
29 May 1968 through 9 October 1969, when he embarked on a period of repeated AWOLS which resulted in over 700 days of lost time.  The applicant failed to provide any evidence in mitigation of his serious misconduct or to explain the reasons for his multiple periods of AWOL. 

3.  The ADRB's initial review of the applicant's discharge was under the provisions of the SDRP.  The ADRB unanimously voted to upgrade the applicant's discharge to a GD.  The ADRB's second review of the applicant's GD was to determine whether the discharge should be affirmed.  The ADRB unanimously voted not to affirm his GD because he failed to provide compelling mitigating evidence for his repeated AWOLS. 

4.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant has not provided sufficient mitigating evidence to warrant a change in his type of discharge.  Therefore, there is no justification to affirm the applicant's GD under the SDRP.

5.  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

___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.



      _______XXX_______________
               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)                                         AR20080012931



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ABCMR Record of Proceedings (cont)                                         AR20080012931



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