BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090016771 


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 4 October 1972 discharge to an honorable discharge.

2.  The applicant states he had already received an honorable discharge from his previous period of service which included service in Korea.  He states, in effect, he was young at the time and was very sick mentally when he came back from Vietnam.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).  

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 military records show he enlisted in the Regular Army on 26 September 1967.  He was awarded the military occupational specialty (MOS) of 17A (combat surveillance and target acquisition crewman).  He was released from active duty on 25 April 1969 having served 1 year and 7 months of active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Standby) to complete his remaining Reserve.

3.  The applicant enlisted in the Regular Army on 17 September 1969.  The highest rank/grade he held during his tenure of service was specialist four (SP4)/
E-4.

4.  The applicant's records show he received the Army Commendation Medal for meritorious service in connection with military operations against a hostile force.  His records do not show any additional significant acts of achievement or valor during his military service.

5.  The applicant's records show that court-martial charges were preferred against the applicant for the offense of being absent without leave (AWOL) during the period 8 January 1971 to 6 September 1972 (607 days).

6.  On 11 September 1972, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service.  He acknowledged that he had not been subject to coercion with respect to his request for discharge and he had been advised of the implications that were attached to it.  He acknowledged that he had consulted with counsel who fully advised him in this matter.  He further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge, he may be ineligible for many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA) and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  A statement on his behalf was submitted.

7.  In his statement, the applicant indicated he was very ill and "couldn't stand the Army after his experiences."  He states while he was home on leave his grandfather died and his mother became sick and unemployed.  He further indicated his father was deceased, there was still a 15-year-old brother at home, and he felt responsible for his family.

8.  On 2 October 1972, the separation authority approved the applicant's request for discharge for the good of the service.  He directed the applicant be issued an Undesirable Discharge Certificate and be reduced to private (PV1)/E-1.

9.  On 4 October 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  The DD Form 214 issued to the applicant shows he completed 1 year, 4 months, and 19 days of active service this period.  Item 21 (Time Lost) contains the entry, "8Jan71 - 5Sep72."

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

11.  On 17 February 1976, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his undesirable discharge.

12.  An Office of the Adjutant General letter to the applicant, dated 9 June 1977, stated the applicant's application for consideration under the "DOD Discharge Review Program (Special)" had been examined and his discharge under conditions other than honorable was upgraded to general under honorable conditions effective 23 May 1977.

13.  An Office of the Adjutant General letter to the applicant, dated 16 November 1978, stated the ADRB determined that the applicant did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, the applicant's upgraded discharge under the "DOD Discharge Review Program (Special)" was not affirmed.  The letter further indicated that the DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) enclosed with the letter in no way changed or modified the upgraded discharge he previously received.  However, it stated that because of a new law, the applicant would not be able to use that discharge to qualify for benefits under the VA.

14.  The Department of the Army 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 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 (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.

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:

   a.  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 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

   b.  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 was made under the published uniform standards and procedures.

16.  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.

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 discharge with characterization of service 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's records show he was charged with the commission of a serious offense.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.

2.  The applicant's records show he had 607 days of time lost due to being AWOL.  His character of service was based on the offense for which he requested discharge.  He has not provided sufficient evidence to mitigate the actions he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

3.  Records show he was 23 years of age at the time he went AWOL.  However, there is no evidence indicating the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, he demonstrated the capacity for honorable service by completion of his first period of service of 1 year and 7 months without an offense of record.

4.  The applicant contends he was mentally sick at the time he went AWOL.  However, there is no available medical evidence and he has provided none to substantiate this claim.

5.  The applicant has not submitted any evidence to show his mother was ill when he went AWOL.  However, even if he did, it would not form the basis to upgrade his discharge.  The Army has policies and procedures to deal with family issues, including compassionate reassignments and hardship discharges.

6.  The applicant's prior military service and meritorious award were considered.  However, these are not sufficiently mitigating or meritorious to warrant upgrading a properly issued discharge.


7.  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)                                         AR20090016771



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ABCMR Record of Proceedings (cont)                                         AR20090016771



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