BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090020771 


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 that his general discharge be affirmed.

2.  The applicant states that his discharge was upgraded under the Department of Defense Special Discharge Review Program (DOD-SDRP) but it was not affirmed.  The applicant states that he is unable to receive Department of Veterans Affairs (VA) benefits under his general discharge.  The applicant states that he has been denied non-service connected disability for arteriovenous malformation (AVN) brain surgery 20 years ago.  He continues that he needs his discharge affirmed in order to receive veteran's benefits.

3.  The applicant provides a copy of:

* his DD Form 214 (Report of Separation from Active Duty) for the period ending 16 January 1973
* his General Discharge Certificate, date 16 January 1973
* a VA Form 10-1000 (Discharge Summary), dated 6 August 1986
* an undated 3-page Standard Form 507 (Clinical Record)
* an undated letter from a civilian physician  

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 on 21 April 1972 for a 2-year term of service.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 16D (Hawk Missile Crewman).

3.  On 16 October 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 29 May 1972 to 30 May 1972.

4.  The applicant's records show that he was AWOL for the period 29 September 1972 to 2 October 1972.

5.  A DD Form 458 (Charge Sheet), dated 29 November 1972, shows charges were preferred against the applicant for disobeying a lawful order from a commissioned officer and being AWOL for the period 11 November 1972 to
22 November 1972.

6.  After consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service.

7.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

8.  The appropriate authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed that he be issued an Undesirable Discharge Certificate.  On
16 January 1973, the applicant was discharged accordingly.  He had completed 8 months and 8 days of creditable active service with 20 days of lost time due to AWOL.

9.  On 12 July 1977, the applicant was notified by the Office of the Adjutant General and the Adjutant General Center, Washington, D.C. that his application for upgrade of his discharge under the DOD-SDRP was considered by the Army Discharge Review Board (ADRB) and it was approved on 8 July 1977.  The applicant was issued a new DD Form 214 upgrading his character of service to a general discharge characterized as under honorable conditions.

10.  On 5 November 1979, the applicant was notified by the Office of the Adjutant General and the Adjutant General Center that the previous upgrading of his discharge had been re-reviewed by the ADRB 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.

11.  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 VA 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. 

12.  The 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 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.  

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

DISCUSSION AND CONCLUSIONS:

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

2.  Evidence shows that 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 an undesirable discharge to a general discharge (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 process.

4.  The applicant's records show that he received one Article 15 and he had three instances of AWOL.  The applicant had completed 8 month and 8 days of his 
2-year enlistment with a total of 20 days of time lost due to AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for affirming the general discharge.

5.  It does not appear that the applicant met the Public Law 95-126 criteria (e.g., 180 days of continuous unauthorized absence, conscientious objector, deserters) that would have acted as a specific bar to eligibility for VA benefits.  However, VA benefits does not fall under the purview of this Board and the applicant should check with the VA for the specific reason he has been denied benefits.

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)                                         AR20090020771



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ABCMR Record of Proceedings (cont)                                         AR20090020771



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