DOCKET NUMBER:  AR20090001891 


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 discharge under other than honorable conditions, which was upgraded to a general discharge under honorable conditions by the Army Discharge Review Board (ADRB) in June 2008, be affirmed.

2.  The applicant states, in effect, that the affirmation of his general discharge is for the Department of Veterans Affairs (DVA) purposes.

3.  The applicant provides a letter from the DVA and the ADRB Case Report and Directive.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 17 March 2004. 

2.  On 22 June 2005, charges were preferred against the applicant for two specifications of being absent without leave (AWOL) and two specifications of communicating a threat:

a. Charge 1, Specification 1:  being AWOL from his unit, A Company, 
2d Battalion, 502d Infantry Regiment, Fort Campbell, Kentucky, from 23 May to 25 May 2005; 


b. Charge I, Specification 2:  being AWOL from his unit, A Company, 
2dBattalion, 502d Infantry Regiment, Fort Campbell, from 31 May to 
2 June 2005;

	c.  Charge II, Specification 1:  On 16 June 2005, wrongfully communicating a threat to the first sergeant to "hurt his chain of command" or words to that effect; and  

	d.  Charge II, Specification 2:  On 16 June 2005, wrongfully communicating a threat to a second lieutenant and a staff sergeant to "get a firearm and come back to the company and kill everyone in the unit" or words to that effect.

3.  On 22 June 2005, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

4.  The applicant signed his request for discharge which shows he made the request under his own free will; that he was afforded the opportunity to speak with counsel; he acknowledged he understood that he may be furnished an Under Other Than Honorable Conditions Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the DVA; and that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Conditions Discharge.  

5.  On 25 July 2005, the Commander, A Company, 2nd Battalion, 502d Infantry Regiment, Fort Campbell, recommended approval of the applicant’s request for discharge for the good of the service.  

6.  On 25 July 2005, the Commander, 2nd Battalion, 2nd Brigade, Combat Team, 101st Airborne Division, Fort Campbell, recommended approval of the discharge action.  

7.  On 4 August 2005, the Commanding General, 101st Airborne Division, Fort Campbell, approved the applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial with service characterized as under other than honorable conditions.

8.  The applicant's DD Form 214 shows that he was discharged in lieu of trial by court-martial under the procedures of Army Regulation 635-200, chapter 10, on 12 August 2005.  His service was characterized as under other than honorable conditions.  The applicant had served 1 year, 4 months, and 20 days during his current enlistment with lost time from 23 May to 25 May 2005 and 31 May 
to 2 June 2005 due to being AWOL.

9.  On 5 July 2007, the ADRB approved the applicant’s request for an upgrade of his discharge and upgraded his discharge to a general discharge, under honorable conditions.  This action also entailed a restoration of the applicant's rank and pay grade to private first class (PFC)/E3.  The ADRB opined that the evidence supported a conclusion that the applicant's characterization of service was too harsh and as a result it was inequitable.  However, the board determined that the reason for discharge was proper and equitable.  

10.  A DVA letter, dated 9 December 2008, informed the applicant, in part, that the DVA does not recognize an honorable or general discharge issued by a Decision Review Board (DRB) intended to set aside a bar under Title 38 Code of Federal Regulation 3.12c, on or after the enactment of Public Law 95-126, dated
8 October 1977.

11.  The Department of Defense (DOD) Special Discharge Review Program (SDRP) was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received undesirable discharges (UDs) (the equivalent now being a discharge under other than honorable conditions) or general discharges 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 Vietnam 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 in Southeast Asia 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 from a previous tour of military service.

12.  Title 38 Code of Federal Regulation (CFR) 3.12c states, in pertinent part, that benefits are not payable where the former service member was discharged or released by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave for a continuous period of at least 180 days.

13.  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 a discharge under other than honorable conditions, to the list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the DVA.  The law further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards.  

14.  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.  Evidence of record shows the applicant’s request for separation under the provisions of chapter 10 of AR 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  The record further shows the applicant’s discharge accurately reflects his overall record of service.  

2.  The ADRB upgraded the applicant's characterization of service from under other than honorable conditions to general under honorable conditions based on the board's opinion that the applicant's characterization was too harsh and as a result it was inequitable.  However, the board determined that the reason for discharge was proper and equitable.  

3.  It does appear that the DVA is withholding benefits from the applicant based on the fact that his general discharge has not been affirmed.  The DVA cites Title 38 CFR 3.12c and Public Law 95-126 as the authority to do so.  However, the authority cited is irrelevant in the applicant's situation.

4.  The applicant's DD Form 214 clearly shows he had less than 7 days of lost time; therefore, if in fact Title 38 CFR 3.12c and Public Law 95-126 are the bases for the DVA withholding benefits it appears they are doing so in error.  The applicant did not have 180 days of continuous absence and his discharge was not upgraded under the SDRP (he clearly did not qualify for a discharge upgrade under that program).  As such, there is no basis for the ABCMR to affirm the applicant's upgraded discharge because the law cited by the DVA does not apply to him at the time of his upgrade. 




5.  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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090001891



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ABCMR Record of Proceedings (cont)                                         AR20090001891



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