IN THE CASE OF:	

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080016876 


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 general, under honorable conditions discharge (GD), upgrade granted by the Army Discharge Review Board (ADRB) in 1977 be affirmed.

2.  The applicant states, in effect, his undesirable discharge (UD) was upgraded to a GD in 1977; however, the bar of benefits by the Department of Veterans Affairs (VA) was not lifted.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), a 2007 VA letter, and a third-party letter 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 records are not available to the Board.  This case is being considered using reconstructed records, which primarily consist of the applicant's DD Form 214 and previous decisional document issued by the ADRB.  A separation packet containing the specific facts and circumstances surrounding the applicant's discharge processing is not on file.

3.  There is a DD Form 214 on file that shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), on 13 October 1972.  The separation document also shows he completed a total of 2 years, 3 months, and 6 days of creditable active military service and that he had accrued 272 days of time lost at the time of his discharge.  The DD Form 214 also shows he served in the Republic of Vietnam (RVN) from 23 March 1970 through 26 April 1971 and that he earned the following awards during his active duty tenure:  National Defense Service Medal, Army Commendation Medal, Vietnam Service Medal, and RVN Campaign Medal with Device (1960).

4.  On 15 July 1977, the ADRB reviewed the applicant's case under the criteria of the Department of Defense (DOD) Special Discharge Review Program (SDRP) and voted to upgrade his undesirable discharge (UD) to a GD based his RVN service and the fact he earned a decoration other than a service medal.

5.  On 23 January 1979, the ADRB reviewed the applicant's case under uniform discharge review standards established in DOD Directive 1332.28 as a result of Public Law 95-126, and it voted not to affirm the applicant's GD upgrade.  The ADRB noted that the applicant's disciplinary history, which included his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice and separate convictions by a summary court-martial and a special court-marital, diminished the overall quality of his service below that meriting a GD.  

6.  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 UDs or GDs during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.  It further indicated that members 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 the RVN, received a military decoration other than a service medal, successfully completed an assignment in Southeast (SE) Asia or in the Western Pacific in support of operations in SE 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.

7.  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 DOD Directive 1332-28.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.  A UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a GD if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  At the time of the applicant's discharge the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the 1977 ADRB upgrade of his discharge to a GD should be affirmed in order for him to receive VA benefits was carefully considered.  However, the evidence confirms the applicant was initially separated with a UD for the good of the service in lieu of trial by court-martial.  It also shows that the ADRB upgraded the UD to a GD in July 1977 under the provisions of the SDRP; however, during a January 1999 review, the ADRB voted not to affirm the upgrade action under uniform discharge standards established in 1978 to comply with Public Law 95-126.

2.  The evidence further confirms 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.

3.  Further, even considering his RVN service, the UD the applicant received accurately reflected his overall record of service at the time it was issued.  In addition, notwithstanding the initial 1977 upgrade of his discharge under the SDRP based on his service in the RVN, it is clear that the 1979 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.  In view of the facts of this case, it is concluded that the applicant's overall record of service does not support affirmation of the GD issued to him under the provisions of the SDRP.

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)                                         AR20080016876



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ABCMR Record of Proceedings (cont)                                         AR20080016876



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