IN THE CASE OF:	  

		BOARD DATE:	        09 APRIL 2009

		DOCKET NUMBER:  AR20080017455 


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 upgraded to a true general discharge under historically consistent uniform standards.

2.  The applicant states that he does not think he should have received an undesirable discharge for his actions and asks for an upgrade of his discharge to a true general discharge under honorable conditions.  He also states that his discharge was upgraded in April 1977, but that it now seems worthless, and requests an explanation why it is worthless.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and DD Form 215 (Correction to DD Form 214) that were both issued after his characterization of service was upgraded by the DOD SDRP 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 that he enlisted in the Regular Army on 5 November 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 64A (Light Vehicle Driver).  However, prior to completing advanced individual training, the applicant went absent without leave from 16 through 21 February 1970.  After serving at Fort Ord, California from April 1970 to October 1970, he departed for a tour in Germany on 5 December 1970.

3.  On 24 March 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 on two occasions.  His punishment consisted of a reduction in rank and pay grade from private first class (PFC)/E-3 to private (PV2)/E-2, which was suspended for 60 days, forfeiture of $34.00 pay per month for 1 month, and extra duty for 14 days.

4.  On 3 May 1971, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of forfeiture of $15.00 pay for 1 month.

5.  On 13 August 1971, the applicant accepted NJP under Article 15 of the UCMJ for failing to obey a lawful order issued by his superior noncommissioned officer; and absenting himself without authority from his appointed place of duty on or about 0600 hours, 2 August 1971, and remaining so absent until on or about 1800 hours, 3 August 1971.  His punishment consisted of a reduction in rank and pay grade from PFC/E-3 to PV2/E-2, which was suspended for 60 days, forfeiture of $34.00 pay per month for 1 month, and extra duty and restriction for 14 days.  The applicant appealed this punishment; however, on 14 October 1971, his appeal was denied.

6.  On 22 October 1971, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his appointed place of duty on or about 1030 hours, 7 October 1971, and remaining so absent until on or about 1630 hours, 7 October 1971.  His punishment consisted of forfeiture of $15.00 pay per month for 1 month.

7.  On 28 October 1971, the applicant accepted NJP under Article 15 of the 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 PFC/E-3 to PV2/E-2, forfeiture of $25.00 pay per month for 1 month, and extra duty and restriction for 14 days.

8.  On 6 December 1971, the applicant's commanding officer recommended that he be discharged under the provisions of Army Regulation 635-212 (Discharge for Unfitness and Unsuitability) for unfitness.  The applicant was also advised of his rights.

9.  On or about 6 December 1971, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unfitness under the provisions of Army Regulation 635-212.  He waived consideration of his case before a board of officers, as well as a personal appearance before a board.  He also elected not to submit statements in his own behalf and waived representation by counsel.  He acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  Additionally, he further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  

10.  On 10 February 1972, the proper separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness, and directed that he be furnished an Undesirable Discharge Certificate.  On 1 March 1972, the applicant was discharged accordingly.

11.  On 25 July 1977, the applicant's discharge was upgraded from an undesirable discharge to a general, under honorable conditions discharge under the DOD SDRP.  However, in a letter, dated 4 May 1978, the applicant was informed that a preliminary review of his discharge was completed by the Army Discharge Review Board (ADRB) as required by Public Law 95-126 and, as a result of this review, the ADRB made a preliminary determination that he would not qualify for upgrading under the new uniform standards for discharge review.  He was advised that this action would not change the character of his discharge awarded to him under the DOD SDRP; however, he was advised that under the law, the ADRB preliminary determination meant that he may not be automatically eligible for benefits from the Veterans Administration (VA) [now named as the Department of Veterans Affairs].  He was also advised that before this 

preliminary determination became final, he was entitled to an expedited determination if he met certain criteria, and was provided a suspense date of
19 June 1978 to submit a request for an expedited determination.  It does not appear that the applicant requested an expedited determination.

12.  In a letter, dated 28 June 1978, the ADRB informed the applicant that they could not affirm his DOD SDRP upgraded discharge under review standards required by Public Law 95-126.  The ADRB proceedings concluded that the applicant's performance and disciplinary record did not merit affirmation under the uniform standards of the general discharge awarded under the SDRP.  

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation stated, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate.

14.  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 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.  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.

16.  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.

17.  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.

18.  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 or an honorable discharge. 

2.  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.

3.  The evidence of record clearly shows that the applicant accepted NJP under Article 15 on five occasions for multiple offenses of the UCMJ.  It is also clear that the applicant was discharged under the provisions of Army Regulation 
635-212 for unfitness as a result of these offenses.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  After a thorough review of the available records, there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Therefore, there is no basis for granting the applicant's requested relief.

5.  The applicant's misconduct, when taken together, so far outweighs his record of military service that further relief is not warranted.  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 SDRP. 

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)                                         AR20080017455



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ABCMR Record of Proceedings (cont)                                         AR20080017455



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