IN THE CASE OF:	  

		BOARD DATE:	  29 January 2009

		DOCKET NUMBER:  AR20080014865 


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 the upgrade of his undesirable discharge (UD) to a general, under honorable conditions discharge (GD), under the Special Discharge Review Program (SDRP) be affirmed.

2.  The applicant states, in effect, that because the SDRP upgrade of his discharge was not affirmed, he is being denied benefits by the Department of Veterans Affairs (VA), and he requests his GD now be affirmed.

3.  The applicant provides separation documents (DD Form 214, Armed Forces of the United States and Report of Separation from Active Duty), dated 12 November 1969 and 28 May 1971, respectively, and a DD Form 215 (Correction to 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 of the United States and entered active duty on 4 June 1969.  He served on active duty in this status for 10 months and 19 days until being honorably discharged for the purpose of enlisting in the Regular Army (RA) on 22 April 1970.  On 23 April 1970, he enlisted in the RA for 3 years.

3.  The applicant's record shows he was trained in, awarded, and served in military occupational specialty 11C (Infantry Indirect Fire Crewman).  It also shows he was promoted to private first class on 12 November 1969, and that this is the highest rank he attained while serving on active duty.  His record further confirms he arrived in the Republic of Vietnam (RVN) on or about 4 November 1969, and that during his active duty tenure, he earned the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal with Device (1960), and Combat Infantryman Badge.

4.  On 16 December 1970, a summary court-martial (SCM) found the applicant guilty of violating Article 86 of the Uniformed Code of Military Justice (UCMJ) by being absent without leave (AWOL) from 13 through 23 November 1970.  The resultant sentence was confinement at hard labor for 30 days, forfeiture of $62.00 for 1 month, and reduction to private/E-1.

5.  On 30 March 1971, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 14 January through 27 March 1971.

6.  On 21 April 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a UD and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  The applicant acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UD, and he elected to submit a statement in his own behalf.

7.  In his statement, the applicant confirmed he had been AWOL on five separate occasions, totaling 8 months, and as a result of the AWOL and drug use, he had been court-martialed twice.  He also stated that he was not ashamed of what he was doing and that he would continue to go AWOL until he was discharged.  He also confirmed he had used drugs since 1966 and would continue to use them.  He stated that he enjoyed being free and taking drugs, which the Army was holding him back from, and that all he was asking for was to be free.

8.  On 26 May 1971, the separation authority approved the applicant’s discharge and directed that he receive an UD.  On 23 April 1971, 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 8 months and 2 days of creditable active military service, and that he accrued a total of 154 days of time lost due to AWOL and confinement.

9.  On 13 July 1972, 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.

10.  On 20 July 1977, the ADRB voted to upgrade the applicant's discharge to a GD under the criteria of the SDRP.

11.  On 30 June 1978, the applicant’s case was reconsidered by the ADRB using the uniform standards established in Department of Defense (DOD) 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.

12.  The 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 individuals 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 at sea or in the Western Pacific in support of operations in Southeast Asia, 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.

13.  On 8 October 1977, Public Law 95-126 added a provision of law that stipulated 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.

14.  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, and that all 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 DOD Directive 1332-28.

15.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The separation authority can authorize a GD or an HD if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.  At the time of the applicant’s discharge, the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the initial upgrade of his discharge to a GD under the SDRP be affirmed in order for him to receive VA benefits/compensation was carefully considered.  However, the evidence of record confirms the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive a UD, which was consistent with regulatory policy in effect at the time, and accurately reflected the applicant's overall record of service.

2.  The evidence of record also 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.  Therefore, 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.

3.  Further, the UD the applicant received accurately reflected his overall record of service at the time it was issued.  Notwithstanding the initial upgrade of his discharge under the SDRP, 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.

4.  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)                                         AR20080014865



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ABCMR Record of Proceedings (cont)                                         AR20080014865



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