IN THE CASE OF:	.

		BOARD DATE:	       25 AUGUST 2009

		DOCKET NUMBER:  AR20090004982 


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 reconsideration of his earlier request to affirm his 16 October 1967 general discharge which was upgraded undesirable by action of the Department of Defense (DOD) Special Discharge Review Board (SDRB).

2.  The applicant states he disagrees with the Board’s earlier determination that his overall service was undistinguished because:

	a.  he received an honorable discharge from his first enlistment;

	b.  he was promoted several times to the rank of Specialist Five (SP5/E-5); and

	c. he received a Good Conduct Medal and other awards from his second enlistment.

3.  The applicant also admits to having received several Articles 15 (nonjudicial punishments (NJP) under Article 15, Uniform Code of Military Justice) and three courts-martial.  He states he lacked education and came from a difficult family situation, and he suffered family tragedies, including the death of his brother and grandfather, and his wife having an affair with his stepfather.  He became an alcoholic and suffered from depression.  He went through three marriages before counseling and soul-searching enabled him to overcome his problems.  He now has serious medical problems and requires Veterans Administration (VA) medical assistance.

4.  The applicant provides a 2-page letter, a letter from the National Personnel Records Center (NPRC) listing his awards and decorations, a copy of his Cold War Certificate of Recognition, a copy of a Freedom Team Salute Certificate of Appreciation with letter.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080005743 on 11 June 2008.

2.  The applicant submitted a self-authored letter, dated 18 February 2009, in which he presents a new argument that his first period of service was distinguished, as well as an NPRC awards letter and Freedom Team Salute documents.  These items were not previously reviewed by the ABCMR, therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  With no prior service, the applicant enlisted in the Regular Army for 3 years at age 17 years, 11 months, and 13 days.  After serving 1 year, 8 months, and 27 days, he was honorably discharged on 4 February 1964 for the purpose of immediate reenlistment.  During this initial enlistment period, the record reflects one record of NJP for a curfew violation in Korea on 21 April 1963.  As punishment for this offense, he was reduced from Private First Class (PFC/E-3) to Private (PV2/E-2), effective 23 April 1963.  He remained a PV2 for the remainder of this enlistment.

4.  The applicant reenlisted on 5 February 1964.  His extensive record of misconduct is partially related in the prior ABCMR Record of Proceedings.  That document states he received four NJP’s [he actually received eight], a summary court-martial, and two special courts-martial during his second period of service.  He was reduced from PFC to PV2 on two occasions, then promoted to Specialist Four (SP4/E-4) and SP5, before being reduced to SP4, PFC, and Private (PV1/E-1).

5.  The applicant was processed for an administrative separation due to unfitness under the provisions of AR 635-212.  His separation was approved and, on 16 October 1967, he was given an undesirable discharge for unfitness.

6.  Shortly after his discharge, the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 13 January 1969, denied his request.
7.  In 1977, the DOD was directed by then President Carter to establish the SDRP.  The SDRP stipulated that all former service members who received undesirable or general discharges during the period 4 August 1964 through 28 March 1973, were eligible for an upgrade review under the SDRP.  It further indicated that individuals who received an undesirable discharge during the Vietnam War 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 (HD) from a previous tour of military service.

8.  In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  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.  Two of the principal features of Public Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures.  The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service correction boards in order to entitle the service member to VA benefits.  

9.  On 30 June 1977, the ADRB voted to upgrade the applicant's discharge to a GD under the criteria of the SDRP.  On 13 November 1978, the applicant’s case was reconsidered by the ADRB using the uniform standards established by Public Law 95-126 and promulgated in DOD Directive 1332-28.  The ADRB 
concluded that the GD issued to the applicant under the provisions of the SDRP did not warrant affirmation.  This determination was made based on the applicant's overall record of service.  The ADRB stated:

The Board voted unanimously not to affirm the applicant’s discharge under the Uniform Standards in view of his overall record consisting of approximately three years and eight months on this enlistment [second enlistment].  His service was characterized by approximately eight Articles 15, one summary and two special courts-martial.  The Board noted that applicant’s lost time was approximately 32 days.  The Board also noted that applicant’s service in RVN [Republic of Vietnam] was unsatisfactory and that summary and two special courts-martial were received while he was in RVN.

10.  On 13 March 2008, the applicant petitioned the ABCMR seeking affirmation of his SDRP-upgraded general discharge.  The applicant used the same explanation for his misconduct that he offers for this review – education, background, family problems, infidelity, and divorce.  On 11 June 2008, this Board denied his request citing his “extensive disciplinary history and record of misconduct” for creating an “overall record of undistinguished service.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his prior ABCMR Record of proceedings is incorrect in categorizing his service as undistinguished.  He avers his service was distinguished because he received an honorable discharge from his first enlistment; he was promoted several times to the rank of Specialist Five (SP5/E-5); and he received a Good Conduct Medal and other awards from his second enlistment.

2.  The applicant’s first enlistment of 3 years was roughly shortened by one half as a result of his reenlistment.  During that short time, he received NJP for a curfew violation in Korea on 21 April 1963 and was reduced from PFC to PV2.  Although he was given an honorable discharge for the period, his service was far from distinguished.

3.  The applicant’s second period of service, and the period for which he was undesirably discharged, was marked by receipt of eight NJP’s and three courts-martial.  This service was thoroughly undistinguished and the fact that he was promoted to SP5 is of small consequence considering he was quickly demoted to SP4, PFC and PV1.

4.  The fact the applicant received the Good Conduct Medal is not germane to the characterization of his service.  He received his Good Conduct Medal for the 3-year period 8 May 1962 through 7 May 1965, a period during which he had no courts-martial and only one NJP.  That period is not the period for which he received an undesirable discharge and, as stated, that period, though honorable, was not distinguished.

5.  The SDRP review process followed in the applicant’s case was accomplished in accordance with the existing law and regulations in effect at the time, and it was without error or injustice.  The ADRB, while upgrading the applicant’s undesirable discharge to a general discharge in accordance with the SDRP, correctly voted not to affirm same after applying the uniform standard rule established by Public Law 95-126 and promulgated in DOD Directive 1332-28.

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.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080005743, dated 11 June 2008.




      _______ _   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)                                         AR20090004982



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ABCMR Record of Proceedings (cont)                                         AR20090004982



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