BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007381 


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 his general discharge, upgraded under the Department of Defense (DOD) Special Discharge Review Program (SDRP), be upgraded under the provisions of historically consistent uniform standards.

2.  The applicant states he entered the military because of the discipline and responsibility and to build his character.  Instead, he became involved with drugs and alcohol while in Panama and in the Republic of Vietnam.  He states he was never offered rehabilitation for his drug and alcohol problems.  He joined the Army eager, ambitious, motivated, and willing to die for his country.  Instead, he was labeled a misfit and discharged without any offer of help for his drug and alcohol problem.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) that was upgraded under the DOD SDRP.

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 personnel records show he enlisted in the Regular Army on 10 October 1968 for a period of 3 years.  He was discharged on 
29 October 1969 to immediately reenlist.  He had completed 1 year and 20 days of active service that was characterized as honorable.  

3.  On 30 October 1969, the applicant immediately reenlisted in the Regular Army for a period of 4 years.

4.  The applicant was assigned to the 4th Battalion (Mechanized), 20th Infantry in the Panama Canal Zone on 17 December 1969.

5.  On 5 January 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed to his appointed place of duty.

6.  On 21 April 1970, the applicant was found unconscious in a bar in the Canal Zone and was taken to Gorgas Hospital.  The diagnosis was situational reaction of adolescence with ingestion of barbiturates and alcohol.  A final line of duty investigation determined his injury was not in the line of duty and due to his own misconduct.

7.  On 8 May 1970, the applicant was convicted by a summary court-martial of using a barbiturate drug.  

8.  On 8 September 1970, the applicant accepted NJP under Article 15, UCMJ, for being absent from his appointed place of duty.

9.  On 22 September 1970, before a summary court-martial, the applicant pled not guilty but was found guilty of unlawfully striking a sergeant on his head with an M-16 rifle.  His sentence consisted of confinement at hard labor for 30 days and forfeiture of $46 per month for 1 month.  The sentence was approved and ordered executed on 22 September 1970.

10.  The applicant was assigned in the Republic of Vietnam during the period from 10 November 1970 to 16 July 1971.


11.  On 29 May 1971, the applicant was convicted by a special court-martial of:

* leaving his post in an area designated entitlement to special pay for duty subject to hostile fire 
* being incapacitated for the proper performance of his duties as a result of previous indulgence in intoxicating liquor
* failure to obey a lawful order from a commissioned officer
* wrongfully communicating a threat to a sergeant first class

12.  On 4 April 1972, the applicant's commander recommended that, under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability), the applicant be required to appear before a board of officers to determine whether he should be discharged before the expiration of his term of service.  The commander recommended an undesirable discharge because of the applicant's frequent incidents of a discreditable nature with civil or military authorities.

13.  On 7 April 1972, the applicant submitted a statement acknowledging he 
had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  He did not submit statements in his own behalf.  He requested:

* consideration of his case by a board of officers
* personal appearance before a board of officers
* representation of appointed military counsel

14.  The applicant acknowledged that as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

15.  On 17 May 1972, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from on or about 4 October 1971 to on or about 2 March 1972.  

16.  On 5 July 1972, a board of officers was convened to determine whether the applicant should be discharged before the expiration of his term of service.  The board found the applicant to be undesirable for further retention in the military service because of frequent incidents of a discreditable nature with military authorities.  The board recommended the applicant be discharged from the service because of unfitness and be issued an Undesirable Discharge Certificate.
17.  On 24 July 1972, the appropriate authority directed the discharge of the applicant under the provisions of Army Regulation 635-212 and directed he be issued an Undesirable Discharge Certificate.

18.  On 31 July 1972, the applicant was discharged under the provisions of Army Regulation 635-212 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had completed 2 years, 1 month, and 20 days of active service that was characterized as under other than honorable conditions.  He had 222 days time lost.  He was issued an Undesirable Discharge Certificate.

19.  On 16 February 1978, the applicant was notified his discharge was upgraded to a general discharge by the Army Discharge Review Board (ADRB) under the criteria of the DOD SDRP.  This upgrade action was based on his age, general aptitude, length of service at the time of discharge, education level at time of discharge, entrance into service from a deprived background, and possible personal problems that could have contributed to the acts that led to his discharge.  

20.  On 1 August 1978, the ADRB informed the applicant that the previous upgrading of his discharge had been re-reviewed as required by Public Law 
95-126.  As a result, the ADRB determined that he did not qualify for upgrading under the new uniform standards for discharge review and, accordingly, his upgraded discharge under the DOD SDRP was not affirmed.

21.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  This regulation stated members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

22.  The DOD SDRP was directed in a memorandum from the Secretary of Defense in 1977.  The DOD SDRP stipulated that all former service members who received undesirable discharges or general discharges during the period 
4 August 1964 through 28 March 1973 were eligible for review under the DOD SDRP.  It further indicated that individuals who received an undesirable discharge during the Vietnam Era would have their discharges upgraded if they met one of the following criteria:  wounded in combat in the Republic of Vietnam; received a military decoration, other than a service medal; successfully completed an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia; completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974; or received an honorable discharge from a previous tour of military service.  
23.  The DOD SDRP also provided secondary criteria that allowed the ADRB to upgrade a discharge if the board believed such upgrading was appropriate based on all the circumstances of a particular case, and on the quality of civilian record made since discharge.  Factors to be considered included:  age, general aptitude, and length of service at time of discharge; education level at time of discharge; entered service from a deprived background; possible personal distress which could have contributed to the acts that led to discharge; entered military with waiver of normally applicable standards; actions that led to discharge alleged at the time to have been motivated by conscience; was discharged for abuse of drugs or alcohol and, if so, any contributing or extenuating circumstances; and record of good citizenship since discharge.  

24.  On 8 October 1977, Public Law 95-126 added the provision that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the Department of Veterans Affairs.  The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions.  It further required that discharges upgraded under the automatic criteria established under the DOD SDRP be reconsidered under the newly established uniform discharge review standards.  On 29 March 1978, these newly established uniform discharge review standards were published in 
DOD Directive Number 1332-28.  

25.  Army Regulation 635-200 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 his undesirable discharge should be upgraded to a general discharge under the provisions of historically consistent uniform standards.


2.  The ADRB upgraded the applicant’s discharge from under other than honorable conditions to general under honorable conditions under the DOD SDRP on 16 February 1978 based on a mandate contained in the established DOD SDRP criteria in effect at the time, based on his age, general aptitude, length of service at the time of discharge, education level at time of discharge, entrance into service from a deprived background, and possible personal problems that could have contributed to the acts that led to his discharge.  

3.  However, on 1 August 1978 the ADRB re-reviewed his discharge using uniform discharge review standards, as required by Public Law 95-126.  The ADRB determined that he did not qualify for upgrading under the new uniform standards for discharge review and, accordingly, his upgraded discharge under the DOD SDRP was not affirmed.

4.  In the absence of evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, and that the undesirable discharge he received accurately reflected his overall record of service at the time it was issued.  It is further found that the 1978 determination of the ADRB that the general discharge issued to the applicant under the provisions of the DOD SDRP did not warrant affirmation given his extensive disciplinary history and record of misconduct was proper and equitable.  

5.  The applicant's previous honorable discharge was for a period of 1 year and 20 days.  During the next 2 1/2 years the applicant accepted NJP on two occasions, was convicted by two summary courts-martial, and was convicted by two special courts-martial.  Therefore, his second period of service is considered to be unsatisfactory.  

6.  Therefore, by historically consistent uniform standards, it is not appropriate to upgrade the applicant's discharge.

7.  The applicant's contention that he was never provided alcohol and drug rehabilitation has been carefully considered.  However, there is no evidence that he informed his command he had a drug and alcohol problem or that he would like assistance in quitting drugs and alcohol.  As such, this contention is not considered mitigating in this case.

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.


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)                                         AR20100007381



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (