IN THE CASE OF:	  

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20090001077 


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 (UD) be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that during his tenure on active duty, his service was nothing less than honorable.  He states that upon his return from the Republic of Vietnam (RVN), while stationed at Fort Lewis, Washington, he was assigned menial duties that he felt were demeaning.  He claims that he believed the only way to accelerate his discharge was to go absent without leave (AWOL), which he did on three separate occasions, totaling 66 days.  He further states that he has suffered from a post-traumatic stress disorder (PTSD) since his return from the RVN which to this day still affects his life.  He states that he has been turned down for health care benefits by the Department of Veterans Affairs (VA), has very few friends, and has been totally shunned by society since his return from his RVN service.

3.  The applicant provides the following documents in support of his application:  DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 13 August 2008; DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective 2 February 1972; Lincoln County Veteran Services letter, dated 26 September 2008; Statement in Support of Claim, dated 10 September 2008; electronic mail messages; third-party statement; DA Form 20 (Enlisted Qualification Record); DD Form 4 (Enlistment Contract – Armed forces of the United States); Standard Forms 88 (Report of Medical Examination); Standard Forms 89 (Report of Medical History); and DA Form 1051 (Record of Injury).
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 he enlisted in the Regular Army and entered active duty on 20 June 1969, and that he was trained in and awarded military occupational specialty 36E (Cable Slicer).

3.  The applicant's DA Form 20 shows, in item 33 (Appointments and Reductions) that he was advanced to specialist four/E-4 on 24 May 1970, and that this is the highest rank he attained while serving on active duty.  It also shows that on 23 August 1971 he was reduced to private first class/
E-3 and on 27 January 1972 he was reduced to private/E-1.

4.  Item 31 (Foreign Service) of the applicant's DA Form 20 shows he served in the RVN from 4 March 1970 through 5 March 1971.  Item 41 (Awards and Decorations) shows he earned the following awards during his tenure on active duty:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal with Device (1960), Army Commendation Medal (ARCOM), 2 Overseas Service Bars, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

5.  The applicant's record shows he was awarded the ARCOM for meritorious service in the RVN from 1 August 1970 through 20 September 1970.  The ARCOM citation on file indicates the applicant distinguished himself by exceptionally meritorious service in the support of military operations in the RVN. It further indicates he astutely surmounted extremely adverse conditions to obtain consistently superior results and that he invariably accomplished every task with dispatch and efficiency.  It further indicated that his unrelenting loyalty, initiative and perseverance brought him wide acclaim and inspired others to strive for maximum achievement.  His record is void of any disciplinary actions or adverse information during his RVN tour.
6.  On 11 June 1971, after his return from the RVN the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL from his unit without proper authority on 9 June 1971.  His punishment for this offense was a forfeiture of $25.00 and 10 days of extra duty.

7.  The record further shows that he accrued a total of 66 days of time lost due to two periods of being AWOL between 13 July 1971 and 31 October 1971.

8.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does include a properly constituted DD Form 214 that shows he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service and that he received a UD on 2 February 1972.  The DD Form 214 confirms he completed a total of 2 years, 5 months, and 7 days of creditable active military service and that he accrued 66 days of time lost due to AWOL.  It further shows that he earned the ARCOM, NDSM, VSM, RVN Campaign Medal with Device (1960), Expert Marksmanship Qualification Badge with Rifle Bar 
(M-16), Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and two overseas service bars.

9.  The applicant provides a statement from his ex-wife and a cousin, who is a psychologist.  Both of these individuals attest to the fact the applicant is suffering from a PTSD as result of his RVN service.  As a psychologist, his cousin confirms the applicant's unsuccessful efforts to adaptively cope with stressors and responsibilities associated with civilian life after his return from the RVN and his wife indicates that immediately upon the applicant's return from the RVN, he suffered from recurrent and violent nightmares and displayed inappropriate anger responses to ordinary occurrences.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  On 4 April 1977, the Department of Defense (DOD) Special Discharge Review Program (SDRP) was implemented.  The SDRP stipulated that 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.  


12.  The SDRP required that individuals who received UDs during the RVN era would have their discharges upgraded if they met one of the following criteria: 
1) wounded in combat in the RVN;  2) received a military decoration, other than a service medal;  3) successfully completed as assignment in Southeast (SE) Asia or in the Western Pacific in support of operations in SE Asia;  4) 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 29 March 1977, the Army established the Special Discharge Review Board (SDRB) to review discharges under the provisions of the SDRP.  

14.  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.  It 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 - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides the authority for members who commit an offense or offenses for which the authorized punishment includes a punitive discharge to request discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate; however, at the time the applicant's discharge, the regulation provided for the issuance of a UD.  The separation authority could authorize an honorable discharge (HD) or GD based on the member's overall record of service.

16.  Paragraph 3-7a of Army Regulation 635-200 provides that an HD 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.  Paragraph 3-7b of Army Regulation 635-200 provides that a GD 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.  The applicant's contention that his Army service through the completion of his RVN tour was honorable and it was only after he returned from the RVN and was assigned menial duties that he went AWOL to accelerate his discharge processing was carefully considered and found to have merit.

2.  The evidence of record confirms that based on his discharge date of 
2 February 1972, the applicant would have qualified to have his discharge reviewed by the SDRB, which was established in response to the DOD directive requiring Military Service Departments to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  It further shows that the applicant had clearly completed a tour of duty in the RVN and had earned the ARCOM for this combat service.  As a result, it appears that had he applied for review of his UD under the provisions of the SDRP, his UD would have been upgraded to a GD.

3.  Further, the record confirms he accrued only 66 days of AWOL, which is significantly less than the 180 days of continuous absence resulting in an UD that was established by the VA as a bar to benefits administered by that agency in Public Law 95-126, and which was the basis for establishing uniform discharge review standards and the discharge affirmation requirement for discharges upgraded under the SDRP.  

4.  The intent of DOD in establishing the SDRP was for the Military Services to recognize prior honorable combat service as a compelling mitigating factor in the SDRB discharge review process, and to liberally apply mitigating standards to other factors presented by an applicant in requesting a discharge upgrade.  The applicant meets all the necessary criteria for a discharge upgrade to GD under the SDRB process, and the 66 days of AWOL he accrued that resulted in his 
UD clearly would not have barred the affirmation of any upgrade he might have received from the SDRB had he applied.  


5.  The applicant's successful tour of duty in the RVN, for which he was awarded the ARCOM, and applying the spirit of the SDRB process by giving full consideration and recognition to the applicant’s honorable combat service are sufficient justification for an upgrade of the applicant’s characterization of discharge .  Therefore, in the interest of equity and compassion, it would be appropriate to upgrade the applicant’s characterization of discharge to a GD at this time. 

6.  However, even when applying the spirit of the SDRP, an upgrade to a fully honorable discharge is not warranted in this case.  The applicant’s 66 days of AWOL clearly diminished the quality of his service below that meriting a fully honorable discharge, even when applying SDRB criteria and giving full consideration to his prior combat service.  

BOARD VOTE:

___x____  __x_____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgraded his undesirable discharge of 2 February 1972, to a general, under honorable conditions discharge; and by issuing him a correction to his DD Form 214 that reflects this change. 




      _________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)                                         AR20090001077



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ABCMR Record of Proceedings (cont)                                         AR20090001077



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