BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20080016942 


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 under the Department of Defense (DOD) Special Discharge Review Program (SDRP) be affirmed under uniform standards.

2.  The applicant states, in effect, that mental and physical problems resulting from a truck accident in Vietnam that killed a fellow Soldier led him to leave his unit in an absent without leave (AWOL) status on several occasions and ultimately led to his undesirable discharge.  He also contends that his legal counsel told him he would receive an honorable discharge if he requested a discharge for the good of the service.  He also wishes to withdraw his request for discharge in lieu of trial by court-martial and go back to court.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); 121 pages of military personnel and medical records; civilian medical records; and a letter, dated 
9 October 2008, from the Disabled American Veterans 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.  The applicant's military records show he enlisted in the Regular Army on 
28 October 1970.  He completed initial entry training and was awarded military occupational specialty 64C (Motor Transport Operator).  He was then reassigned to Fort Hood, Texas in January 1971.

3.  On 27 April 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction in rank and pay grade from private/E-2 to private/E-1, which was suspended and ultimately remitted without action, forfeiture of $15.00, and extra duty for 14 days.

4.  On 13 July 1971, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself without authority from his unit, on 22 June 1971, and remaining so absent until 9 July 1971.  His punishment consisted of a forfeiture of $31.00 and extra duty for 7 days.  His last conduct and efficiency ratings at Fort Hood were both "Fair."

5.  After departing Fort Hood, and while enroute to Vietnam, the applicant accepted NJP under Article 15 of the UCMJ, on 30 July 1971, for missing movement by failing to go to his appointed place of duty at the prescribed time (baggage formation) and for missing his flight to Vietnam.  His punishment consisted of a forfeiture of $30.00. 

6.  The applicant arrived in the Republic of Vietnam on 3 August 1971.  On
15 September 1971, the applicant was reassigned to Camp Zama, Japan and placed in a patient status after apparently being injured in a vehicle accident.  He returned to the continental United States on 27 September 1971, and he was assigned to the Medical Holding Company, Madigan General Hospital in Tacoma, Washington on 28 September 1971.

7.  On 20 October 1971, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself without authority from his unit on 
18 through 19 October 1971.  His punishment consisted of a forfeiture of $20.00.

8.  On 23 March 1972, the applicant was convicted by a summary court-martial for absenting himself without authority from his unit on 30 December 1971, and remaining so absent until 3 March 1972.  He was sentenced to confinement at hard labor for 10 days, a forfeiture of $80.00, and a reduction in rank from specialist four/E-4 to private/E-1.  On 3 April 1972, the applicant's sentence was approved and ordered to be executed, but the execution of that portion of his sentence that provided for confinement at hard labor was suspended.  However, on 10 April 1972, the suspended period of confinement at hard labor was vacated and he was placed in confinement.

9.  The applicant went AWOL from 19 April to 25 May 1972.  Charges were subsequently preferred against the applicant for this offense which was punishable under the UCMJ with a punitive discharge. 

10.  On 8 June 1972, the applicant acknowledged that he had been afforded an opportunity to consult with appointed counsel who fully advised him of his rights concerning a request for discharge under the provisions of Chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.

11.  On 8 June 1972, the applicant voluntarily requested discharge for the good of the Service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200, and acknowledged he had not been subjected to coercion with respect to his request for discharge.  He acknowledged he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged that he understood as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  

12.  In conjunction with his request for discharge, the applicant elected to submit a statement in his own behalf, and essentially stated that he requested discharge from the Army for the betterment of himself and the Army.  He also indicated that he had been in a truck accident in Vietnam and subsequently contracted hepatitis and mononucleosis while in the hospital.  He continued by stating that he had already served his country and could do no more good for himself or the Army, because the Army had destroyed him mentally and physically.  Additionally, he stated that he wanted out of the Army because he could never do what he 
wanted to do, and that the Army prevented him from doing what he thought was 
best for him.  Further, he stated, in pertinent part, that the Army had done nothing for him except try and change his way of life and he could not live the way the Army wanted him to. 

13.  On 13 June 1972, a physical examination was performed on the applicant, and he was found medically and psychiatrically qualified for separation.   

14.  On 14 June 1972, the proper separation authority approved the applicant's request for discharge under the provisions of Chapter 10, Army Regulation 
635-200, and directed that he be issued an Undesirable Discharge Certificate.  On 20 June 1972, the applicant was discharged accordingly.

15.  In a letter, dated 3 February 1976, the Army Discharge Review Board (ADRB) informed the applicant that his request for a change in the type and nature of his discharge was denied.

16.  On 12 December 1977, the applicant's discharge was upgraded from an undesirable discharge to a general discharge, under honorable conditions under the DOD SDRP.  However, in a letter, dated 1 August 1978, the applicant was informed that the previous upgrade of his discharge had been re-reviewed by the ADRB as required by Public Law 95-126.  As a result of this review, the ADRB determined that he did not qualify for an upgrade under the new uniform standards for discharge review, and that his DOD SDRP upgraded discharge was not affirmed.  He was also informed that due to the new law, he would not be able to use his upgraded discharge under the DOD SDRP to qualify for VA benefits.

17.  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 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.  At the time, an undesirable discharge was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.
 
18.  On 4 April 1977, the 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 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 a 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.

19.  On 8 October 1977, Public Law 95-126 was enacted.  This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the DOD SDRP and certain other programs.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

20.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7a provides, in pertinent part, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

21.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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.

22.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge under the DOD SDRP should be upgraded to a true general discharge under historically consistent uniform standards.

2.  The fact that the applicant was involved in a vehicle accident in Vietnam was considered.  The death of a fellow Soldier in the accident could not be confirmed. 

3.  The applicant's contention that mental and physical problems resulting from a truck accident led him to go AWOL was also considered.  However, the applicant accepted NJP on three occasions prior to his service Vietnam, one of which was for a period of AWOL and another was for missing his flight to Vietnam.  Additionally, his last conduct and efficiency ratings prior to departing for Vietnam were both "Fair."  These facts establish that the applicant's pattern of misconduct began before any of his experiences in Vietnam.  Additionally, while the applicant contends he had mental and physical problems he was medically and psychiatrically cleared for separation by competent medical authority.

4.  In the applicant’s request for discharge, he acknowledged in writing that he had not been subjected to coercion with respect to his request for discharge and that he had been advised that he could receive an undesirable discharge and of the implications that were attached to such a discharge.

5.  The fact that the applicant wishes to withdraw his request for discharge and go back to court was noted; however, this is not an option he is entitled to exercise at this late date.

6.  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.

7.  Evidence of record clearly shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ on four separate occasions and he was court-martialed for going AWOL.  It is also clear that he voluntarily (emphasis added) requested discharge in lieu of a second court-martial for yet another period of AWOL.  Additionally, he did not provide any evidence of an error or injustice in the separation process, therefore, regularity must be presumed in this case.  The applicant's discharge accurately reflects his overall record of service.


8.  The applicant's record of service does not mitigate his misconduct.  As a result, the applicant's discharge is properly characterized as having been served under honorable conditions only under the extraordinary provisions of the DOD SDR.  The available evidence establishes no basis for an affirmation of the applicant’s discharge. 

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)                                         AR20080016942



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016942



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1