IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090016083 


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 general under honorable conditions discharge be upgraded to an honorable discharge and or affirmed.

2.  The applicant states, in effect, he needs his discharge upgraded or affirmed to be eligible for Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a memorandum from the National Personnel Records Center, dated 24 August 2009.

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 was inducted into the Army of the United States on 8 October 1965 and successfully completed basic combat training, advanced individual training, and he was awarded military occupational specialty (MOS) 76A (Supply Clerk).  He was later awarded MOS 11B (Light Weapons Infantryman).

3.  On 15 January 1966, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for the period 8 January 1966 through 12 January 1966.

4.  On 22 January 1966, he accepted NJP under Article 15, UCMJ, for failure to be at his appointed place of duty.

5.  On 27 June 1966, he was convicted by a summary court-martial of being AWOL for the period 20 March 1966 through 9 May 1966.  His sentence consisted of confinement at hard labor for 30 days, forfeiture of $40.00 pay per month for 1 month, and reduction to the rank/grade of private/E-1.

6.  On 1 December 1966, he was convicted by a special court-martial of being AWOL for the period 24 July 1966 through 8 November 1966.  His sentence consisted of confinement at hard labor for 5 months and forfeiture of $25.00 pay per month for 5 months.

7.  The evidence of record shows the applicant was AWOL for the period 2 February 1967 through 28 February 1967.

8.  On 13 March 1967, the applicant arrived in Vietnam and was assigned to Company D, 2nd Battalion, 5th Cavalry, 1st Cavalry Division, assigned as a rifleman.  He was wounded in combat on 30 April 1967 and 21 February 1968.

9.  On 8 October 1967, he accepted NJP under Article 15, UCMJ, for missing a company movement.

10.  On 8 March 1968, he departed Vietnam.

11.  On 14 January 1969, he was convicted by a special court-martial of being AWOL for the period 4 June 1968 through 29 December 1968.  His sentence consisted of confinement at hard labor for 6 months and forfeiture of $95.00 pay per month for 6 months.

12.  The evidence of record shows the applicant was AWOL for the period 22 July 1969 through 21 November 1969.

13.  The applicant's court-martial charge sheet is not available.

14.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 31 December 1969 under the provisions of chapter 10 of Army Regulation 
635-200 (Personnel Separations) for the good of the service with an undesirable discharge and service characterized as under other than honorable conditions.  The applicant completed 1 year, 11 months, and 22 days of creditable active service of this term of service with 818 days of lost time due to AWOL and confinement.

15.  The applicant's DD Form 214 (Report of Separation from Active Duty) for the period ending 31 December 1969 shows he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal, the Air Medal, the Purple Heart, the Army Commendation Medal, and the Combat Infantryman Badge.

16.  On 12 July 1977, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to general under honorable conditions under the provisions of the 19 January 1977 extension of Presidential Proclamation (PP) 4313.

17.  On 26 April 1978, the applicant was notified by the ADRB that the previous upgrading of his discharge had been reviewed as required by Public Law 95-126. 
As a result of the review, the ADRB determined that he did not qualify for upgrading under the new uniform standards for discharge review.  His upgraded discharge under the SDRP was not affirmed.

18.  On 14 July 1978, the applicant was issued a DD Form 215 that corrected his DD Form 214 by showing that his discharge under other than honorable conditions was changed to general under honorable conditions.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  At the time, an undesirable discharge was normally considered appropriate.

20.  Army Regulation 635-200, 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.

21.  PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status.  These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a clemency discharge.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.

22.  A Presidential memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension).  This memorandum mandated the issuance of a general discharge to individuals who had:  (1) applied for consideration under PP 4313, (2) been wounded in action or decorated for valor, and (3) records free of any compelling reason to deny relief.  This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals.  Whether the individuals had performed alternate service was not an issue to be considered.

23.  The DA Special Discharge Review Program (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 re-characterization 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 PP 4313 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.

24.  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 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 Veterans Administration (VA) 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he needs his discharge upgraded or affirmed to be eligible for VA benefits.  However, the ABCMR does not correct records solely for the purpose of obtaining eligibility for benefits.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time and that the ADRB later upgraded the applicant's discharge from undesirable to general under honorable conditions (although the upgrade was not later affirmed under Public 
Law 95-126).

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation processes and the ADRB.

4.  The applicant's records show he received one summary court-martial, two special courts-martial, four Article 15's (several for misconduct other than AWOL), had four instances of AWOL, and had 818 days of lost time due to AWOL and confinement.  Based on these facts, the applicant's service during his enlistment clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general under honorable conditions 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)                                         AR20090016083



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ABCMR Record of Proceedings (cont)                                         AR20090016083



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