BOARD DATE:	  28 October 2010 

		DOCKET NUMBER:  AR20100012172 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he needs to receive his disability benefits from exposure to Agent Orange.  He states he deserves disability benefits because he has three diseases connected to Agent Orange.

3.  The applicant provides a copy of his VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)).

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 was inducted into the Army of the United States on 2 April 1969.  He completed basic combat and advanced individual training and he was awarded the military occupational specialty 11E (Armor Crewman).

3.  On 11 July 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.

4.  On 6 November 1969, the applicant was assigned to the 1st Battalion (Mechanized), 50th Infantry in the Republic of Vietnam.

5.  On 4 June 1970, the applicant was granted 30 days of leave to return home.  On 29 June 1970, he submitted an application for separation due to hardship or dependency.  On 24 July 1970, his application was denied and he was released to return to his parent organization.

6.  On 15 September 1971, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from on or about 11 September 1970 to on or about 15 September 1971.

7.  On 21 October 1971, 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 - in lieu of court-martial).  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Undesirable Discharge Certificate

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits 
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

9.  On 11 November 1971, the appropriate authority approved the applicant's request for discharge for the good of the service and directed issuance of an Undesirable Discharge Certificate.
10.  On 22 November 1971, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with issuance of an Undesirable Discharge Certificate.  He had completed 1 year, 7 months, and 13 days of net active service that was characterized as under conditions other than honorable.  He had 373 days of time lost.

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.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

13.  On 11 July 1977, the Army Discharge Review Board (ADRB) upgraded the applicant’s undesirable discharge to a general discharge, effective 11 July 1977, under the provisions of the DOD SDRP.

14.  On 8 October 1978 Public Law 95-126 was enacted.  This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  This legislation required that the Service 

Departments establish historically consistent uniform standards for discharge reviews.  Previous upgraded discharges under the SDRP and other programs were to be reconsidered using the uniform standards.  Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

15.  On 2 August 1978, the ADRB, in response to Public Law 95-126, notified the applicant that his upgraded discharge was reviewed, but did not affirm the 
11 July 1977 upgrade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to an honorable discharge so he can receive his benefits for his medical conditions that were incurred due to his exposure to Agent Orange.

2.  The ADRB upgraded the applicant’s undesirable discharge to a general discharge under the DOD SDRP on 21 July 1977 based on a mandate contained in the established DOD SDRP criteria in effect at the time.  

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

4.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  His 373 days of time lost shows his service to be unsatisfactory.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

6.  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.  

7.  In view of the foregoing, there is no basis to upgrade the applicant's 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)                                         AR20100012172



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ABCMR Record of Proceedings (cont)                                         AR20100012172



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