IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100017780 


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 (UD) which was upgraded to a general discharge (GD), under the Department of Defense (DOD) Special Discharge Review Program (SDRP), be upgraded to honorable. 

2.  He states, in effect, the discharge he was given was too harsh. 

3.  He provides copies of:

* excerpts from his military medical and dental records
* a DD Form 4 (Enlistment Contract – Armed Forces of the United States)
* a DA Form 20 (Enlisted Qualification Record)
* three nonjudicial punishment (NJP) actions
* a DD Form 214 (Report of Separation from Active Duty)
* a DD Form 215 (Correction to DD Form 214))

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.  His DD Form 4 shows he enlisted in the Regular Army on 31 March 1970. After the completion of basic combat training (BCT), he reported for advanced individual training (AIT) in military occupational specialty (MOS) 70A (Clerk), but he was dropped from the rolls (DFR) after going absent without leave (AWOL). 

3.  A review of his DA Form 20 shows in item 33 (Appointments and Reductions):

		Grade							Date of Rank			Authority
Private E-1 Permanent
31 March 1970
Army Regulation 601-210
Private E-2
21 August 1970
Army Regulation 600-200
Private First Class E-3
6 November 1970
Unit Orders Number 103
Private E-2
5 May 1971
Unit Order Number 18
Private E-1
4 August 1971
Special Court-Martial Number 9
Private E-1
12 January 1972
Special Court-Martial Number 2
4.  Item 38 (Record of Assignments) of his DA Form 20 indicates he completed AIT for MOS 94B (Cook) on 11 March 1971, and was reassigned to Battery A, 4th Training Battalion, 1st AIT Brigade, Fort Bliss, TX on 2 April 1971. 

5.  His DA Form 20 shows no acts of valor, combat assignments or special awards or recognitions.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date Expiration Term of Service) of this form contains the following entries:

		From					To (Included)		   Days		Reason
5 July 1970
5 July 1970
1
AWOL - NJP
10 July 1970
13 July 1970
4
DFR - NJP
28 July 1970
4 August 1970
8
AWOL - NJP
23 August 1970
31 August 1970
9
AWOL - NJP
16 October 1970
21 October 1970
6
AWOL
12 April 1971
18 April 1971
7
AWOL - NJP
15 July 1971
19 July 1971
5
AWOL - Special Court-Martial
19 November 1971
6 February 1972
80
Military Confinement
6.  He provided copies of three separate DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice) that show he was administered NJP for the following offenses:

* failing to go to his appointed place of duty on 24 November 1970
* disobeying a lawful order on 14 February 1971
* going AWOL from 12 through 19 April 1971

7.  A certificate, dated 28 September 1971, issued by the Mental Hygiene Consultation Service at Fort Bliss, TX, shows he underwent a psychiatric evaluation on 24 September 1971.  A Medical Corps officer trained in psychiatry diagnosed him with an immature personality disorder.  The medical officer also noted the following:

* he presented himself with an impulsive and immature mode of behavior
* he had a long history of going AWOL
* rehabilitative efforts would have been nonproductive
* he had no disqualifying mental or physical defects to warrant discharge through medical channels
* he was mentally responsible and able to distinguish right from wrong
* he had the mental capacity to understand and participate in board proceedings

8.  On 28 September 1971, he was advised by his commanding officer that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separation Discharge Unfitness and Unsuitability) for unfitness.  The memorandum further informed him that the action could result in a UD.  He was also advised of his right to present his case before a board of officers, submit any statements on his behalf, choose to be represented by counsel, and to waive any of his rights in writing.

9.  A memorandum, dated 30 September 1971, which was signed by him and his elected counsel shows he:

* had been advised by counsel about the discharge process under the provisions of Army Regulation 635-212 for unfitness
* requested to have his case considered by a board of officers
* elected a personal appearance before a board of officers
* chose not to submit any personal statements
* requested representation by Captain T_________


* understood he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions
* may be deprived of many or all Army benefits and may be deprived of his rights and benefits as a veteran under both Federal and State law
* had the right to withdraw any of his requests up until the date the discharge authority approved the request

10.  On 5 October 1971, his immediate commander recommended that he be discharged under the provisions of Army Regulation 635-212 for unfitness and that he be issued a DD Form 258A (UD Certificate).  The commander also noted the following reasons:

* his continued intentional shirking of his duties
* an inability to adjust to military life
* a record of AWOL dating back to BCT
* he repeatedly went absent from his place of duty
* he had no sense of responsibility
* he was unable to complete a task without supervision

11.  A memorandum, dated 21 October 1971, Subject: Elimination Proceedings under the provisions of Army Regulation 635-212, shows that a board of officers was directed to investigate his case to determine if he should be discharged from the service.  He acknowledged receipt of the notification.

12.  On 1 December 1971, he appeared before a board of officers with counsel.  The board found him to be undesirable for further retention in the military because of his habits and traits of character, which were manifested by repeated periods of AWOL and failure to obey orders.  The board recommended that he be discharged from the service due to unfitness with a UD Certificate.

13.  His record contains an addendum to the board proceedings, dated 
20 January 1972.  This document shows the board compared the applicant’s sworn testimony given on 1 December 1971 with his testimony presented at the hearing on 20 January 1972.  No new significant differences in the opinion of the board members or significant new evidence were presented.  The original findings and recommendations of 1 December 1971 were supported by all board members. 

14.  On 3 February 1972, the board's findings and recommendation were approved.  As a result, the General Court-Martial Convening Authority approved his discharge under the provisions of Army Regulation 635-212 for unfitness and directed he be issued a DD Form 258A.  

15.  Accordingly, he was separated on 14 February 1972, under the provisions of Army Regulation 635-212, for unfitness and furnished a UD Certificate.  He had served 1 year, 6 months, and 14 days of net active service with 120 days of lost time due to being AWOL and in military confinement.

16.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge in 1976.  On 20 June 1977, the ADRB ungraded his UD to a GD under the DOD SDRP and issued him a new DD Form 214.

17.  His record contains memoranda, dated 15 January and 5 February 1979, respectively.  These documents show his previously upgraded discharge had been re-reviewed by the ADRB as required by Public Law 95-126.  As a result of that review, the board determined he did not qualify for upgrading under the new uniform standards and his GD was not affirmed.  The board issued him a 
DD Form 215 and noted that the document in no way changed or modified the upgraded discharge he previously received.  He was also informed that because of the new law, he would not be able to use his GD to qualify for VA benefits. 

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  A UD was normally considered appropriate for Soldiers separating under these provisions. 

19.  On 4 April 1977, the 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 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.

20.  In October 1978, Public Law 95-126 was enacted.  This legislation required the Service departments 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 were required.  Individuals whose SDRP upgrades were not affirmed 


upon review under these historically consistent uniform standards were not entitled to DVA benefits, unless they had been entitled to such benefits before their SDRP review.

21.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7, 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 Soldier'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.  

DISCUSSION AND CONCLUSIONS:

1.  He contends his discharge was too harsh.  The evidence of record clearly shows he had an extensive disciplinary record.  It is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

2.  The evidence of record shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

3.  The ADRB's initial review of his discharge was under the provisions of the SDRP.  The ADRB voted unanimously to upgrade his UD to a GD on 20 June 1977.   

4.  The ADRB's second review of his GD on 15 January 1979 was to determine if the discharge should be affirmed.  The ADRB voted unanimously not to affirm his GD because he did not qualify for upgrading under the new standards for review.  

5.  There is no evidence and he has not provided sufficient evidence to show the ADRB's second decision was improper or flawed.  The ADRB's decision not to affirm his GD was consistent with all applicable laws and regulations.

6.  Notwithstanding the determination made by the ADRB, the official record shows no acts of valor, special decorations or service in Southeast Asia which would support affirming his GD or upgrading his discharge to honorable.  Therefore, he is not entitled to the requested relief.



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)                                         AR20100017780



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ABCMR Record of Proceedings (cont)                                         AR20100017780



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