IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090014048 


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 the Board affirm the upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so he may get Department of Veterans Affairs (VA) benefits. He also requests a personal hearing. 

2.  The applicant states that his discharge was upgraded to under honorable conditions in 1977 but the decision was overturned.  He believes this is an error.  His discharge should be upgraded.  

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 1 October 1969 and held military occupational specialty 63C (Track Vehicle Mechanic).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  

3.  His records further show he served in Vietnam from on or about 20 May 1970 to on or about 18 January 1971.  His records further show he was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and one overseas service bar.

4.  On 23 December 1970, court-martial charges were preferred against the applicant for resisting apprehension by military police on or about 5 December 1970; one specification of being found drunk on duty on or about 16 December 1970; five specifications of assaulting other Soldiers on or about 3 and                7 November and 5 December 1970; and two specifications of communicating a threat against other Soldiers on or about 3 November 1970.

5.  On 17 December 1970, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an under other than honorable conditions discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200.

6.  In his request for discharge, he indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or an under other than honorable conditions discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

7.  On 18 December 1970, his immediate commander recommended disapproval of the request and recommended a court-martial for assault and being drunk on duty.

8.  On 2 January 1971, his senior commander recommended approval of his discharge with an Undesirable Discharge Certificate.

9.  On 6 January 1971, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, he was discharged on 18 January 1971.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year, 3 months, and 8 days of creditable active service.

10.  On 6 July 1977, the Army Discharge Review Board (ADRB) considered his request under the SDRP and directed his discharge under other than honorable conditions be upgraded to an honorable discharge, effective 24 March 1977.  Accordingly, he was reissued a DD Form 214 (Report of Separation from Active Duty) that shows he was honorably discharged.

11.  On 2 February 1979, the ADRB re-reviewed his discharge as required by Public Law 95-126.  As a result of this review, the Board determined that the applicant did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD-SDRP was not affirmed.  This did not change the upgraded discharge he previously received; but, because of the new law, he would not be able to use his discharge to qualify for VA benefits. 

12.  Army Regulation 635-200 sets forth the policy for administrative 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.

14.  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.  

15.  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.  

16.  Army Regulation 15-185 governs operations of the Army Board for Military Corrections (ABCMR).  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The regulation states the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the Board affirm the upgrade of his discharge under the DOD SDRP so he may get VA benefits.

2.  With respect to the personal hearing, his request was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  His records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  .

4.  After review of his discharge upgrade, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  The applicant’s administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  Notwithstanding the original determination by the ADRB, the official record shows that his service was not satisfactory and that his honorable discharge should not be affirmed.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to the requested relief.

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)                                         AR20090014048



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ABCMR Record of Proceedings (cont)                                         AR20090014048



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