BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016123 


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 undesirable discharge as upgraded to a general discharge be affirmed.

2.  The applicant states his records need to indicate he was discharged under honorable conditions.  He adds that he has lost a limb and testicle due to frost bite and Agent Orange.

3.  The applicant does not provide any additional documents.

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 that he was inducted in the Army on 15 January 1965, was awarded the military occupational specialty of turret mechanic, was promoted to pay grade E-3, and enlisted in the Regular Army on 20 July 1966.  He served in Vietnam from 14 April 1967 to 13 April 1968.

3.  The applicant accepted nonjudicial punishment seven times between 22 March 1966 to 23 July 1968 for:

* Disobeying a lawful order 
* Being disrespectful in language to a noncommissioned officer (NCO)
* Sleeping while being on post as a sentinel
* Being absent without leave (AWOL) from 7 to 10 April 1967
* Dereliction in the performance of his duties
* Being AWOL from 1 to 15 July 1968

4.  The applicant was convicted by a special court-martial on 15 February 1968 for sleeping while posted as a sentinel in Vietnam.

5.  The applicant was convicted by a summary court-martial on 20 November 1968 for:

* Being AWOL from 3 September to 22 October 1968
* Being AWOL from 25 October to 4 November 1968
* Being AWOL from 10 to 12 November 1968

6.  The applicant's discharge packet is not contained in his records.  However, in the Army Discharge Review Board's (ADRB's) consideration of the applicant's case it was stated that the applicant was pending court-martial charges for being AWOL from 3 April to 24 July 1969.  The ADRB added "Apparently his AWOL was at least partly as a result of pending charges for (1) disrespect to an officer, (2) FOLO (Failure to Obey Lawful Order) – Commissioned Officer and (3) FOLO - NCO."  He had requested a discharge in lieu of court-martial, that request was approved, and he was given an undesirable discharge on 22 August 1969.

7.  On 6 June 1977, the applicant's discharge was upgraded to a general discharge under the DOD Discharge Review Program (Special).

8.  On 13 April 1978, the ADRB determined that his original characterization of service (under other than honorable conditions) was warranted and did not affirm the discharge upgraded under the DOD Discharge Review Program (Special).

9.  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 Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service. 

10.  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.

11.  In October 1978, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (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.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs was required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

12.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  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 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's undesirable discharge was, in fact, upgraded to a general discharge under the DOD Discharge Review Program (Special).  However, based upon a law passed subsequent to his discharge upgrade, the ADRB reviewed his case based on uniform standards.

2.  Based on uniform standards, the ADRB determined his undesirable discharge was appropriate and opted not to affirm the upgrade of the applicant's discharge under the DOD Discharge Review Program (Special).

3.  The applicant accepted NJP on seven occasions and was convicted by three courts-martial.  He departed AWOL when he was pending court-martial charges for disrespect to an officer and failure to obey the lawful orders of both a commissioned officer and an NCO.  When he returned to military control he requested discharge in lieu of court-martial.

4.  Such a record clearly shows that the applicant's service was not satisfactory.

5.  While it is regrettable that the applicant lost a limb and testicle, there is no basis for granting his 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)                                         AR20100016123



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016123



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1