IN THE CASE OF:	

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090015162 


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, upgrade of his undesirable discharge.

2.  The applicant states that his discharge was upgraded by the Department of Defense Special Discharge Review Program (DOD SDRP), but the Army Discharge Review Board (ADRB) did not affirm the decision.  He states he is disabled due to military disabilities but he cannot get monetary assistance from the Department of Veterans Affairs (DVA) because of his discharge.  He contends that his discharge should be upgraded so that he may get assistance from the DVA.

3.  The applicant provides, in support of his application, two letters from the DVA, dated 13 August 2009 and 26 June 2009; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which shows a character of service of under conditions other than honorable and issuance of a DD Form 258A [Undesirable Discharge Certificate]; an undated letter from the Department of the Army, Office of the Adjutant General, Washington, DC; a DD Form 257A (General Discharge Certificate); and a reissued DD Form 214, which shows character of service of under honorable conditions and issuance of a DD Form 257A.

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 enlisted in the Regular Army (RA) on 11 October 1966 for a period of three years.  He served in Korea from May 1967 to June 1968.  His highest rank/grade attained during his tenure of service was private first class (PFC)/E-3.

3.  On 16 November 1968, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 30 September 1968 to 29 October 1968.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $73.00 pay for 6 months.

4.  On five separate occasions between April 1967 and 2 January 1969, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses: failing to obey a lawful order; being absent from his unit; being AWOL from 22 to 23 August 1968; disobeying a lawful order; failing to go at the time prescribed to his appointment place of duty; and leaving place of duty.

5.  On 13 March 1969, the applicant was convicted by a special court-martial of three specifications of being AWOL from 13 January 1969 to 21 January 1969, 27 January 1969 to 7 February 1969, and 10 February 1969 to 15 February 1969.  He was sentenced to confinement at hard labor for 6 months (3 months suspended for 6 months), and reduction to private (PV1)/E-1.

6.  On 13 June 1969, the applicant was convicted by a special court-martial for being AWOL from 8 April 1969 to 14 May 1969.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $57.00 pay for 6 months.

7.  On an unknown date, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability), based on unfitness.  He was advised of his rights.  The applicant consulted with legal counsel, waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and he did not submit statements in his own behalf.

8.  On 10 July 1969, the separation authority approved the separation action under the provisions of Army Regulation 635-212, paragraph 6a(1), by reason of unfitness - frequent incidents of a discreditable nature with civil or military authorities and directed issuance of an Undesirable Discharge Certificate.

9.  On 17 July 1969, the applicant was discharged from active duty under the provisions of Army Regulation 635-212 for unfitness - frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge.  He completed 1 year, 9 months, and 28 days of total active military service with 251 days of lost time due to AWOL and confinement.

10.  On 25 May 1977, the ADRB upgraded the applicant’s undesirable discharge to a general under honorable conditions discharge under the DOD SDRP.

11.  On 11 April 1978, the ADRB reviewed the applicant’s upgrade to general under honorable conditions under the provisions of Public Law 95-126 and voted not to affirm the upgrade.

12.  In a 26 June 2009 letter, the DVA informed the applicant that his claim for non-service connected benefits with special monthly pension was denied.  The DVA stated three reasons for its decision: (1) under other than honorable conditions discharge on 17 July 1969 constitutes a bar to VA benefits; (2) character of discharge upgraded by DOD SDRP was not affirmed by the ADRB; therefore, cannot pay him benefits; and (3) Public Law 95-126 prohibits payment of VA benefits solely on a discharge upgraded under the DOD SDRP.  His upgrade was not upheld in a second ADRB decision.  Therefore, eligibility to VA benefits rests on the merits of the original “other than honorable” discharge.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.”  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused from completing alternate service in accordance with Presidential Proclamation 4313 (Announcing a Program for the Return of Vietnam Era Draft Evaders and Military Deserters) of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.

15.  Public Law 95-126 provided in pertinent part for a “Relook Program.”  All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards.  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 DVA benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of DVA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a, provides 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge was upgraded by the DOD SDRP, but the ADRB did not affirm the decision.  However, there is no evidence which shows the actions taken in this case were in error or unjust.

2.  The applicant’s contentions that he cannot get monetary assistance from the VA because of his discharge is noted.  However, this issue is not sufficiently mitigating to warrant relief in this case.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The applicant’s service record shows he received five Article 15s and three special courts-martial.  As a result, the applicant’s overall record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant either an affirmed general, under honorable conditions or a fully honorable discharge.

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)                                         AR20090015162



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ABCMR Record of Proceedings (cont)                                         AR20090015162



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