IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100018597 


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 lost time caused by his absence without leave (AWOL) be lowered to less than 180 days.  In effect, he requests the Board affirm the upgrade of his discharge under the DOD Special Discharge Review Program (SDRP) so he may get Department of Veterans Affairs (VA) benefits.

2.  The applicant states that after his return from Vietnam he was transferred to Fort Lewis, WA, and had problems adjusting to his new assignment.  Everything changed and he could not do anything to suit his commander.  He needed help then as he does now.  He received nonjudicial punishment (NJP) and things just got worst after that.  He suffered many injustices and his chain of command stopped with his captain.  However, once this captain was transferred, he (the applicant) returned from AWOL of his own free will and received no further recourse.  

3.  The applicant did not provide any documentary evidence.

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 records show he enlisted in the Regular Army for a period of 3 years on 22 April 1969.  He completed basic combat training at Fort Knox, KY, and was subsequently reassigned on 28 June 1969 to Company A, 2nd Battalion, 5th Training Brigade, Fort Leonard Wood, MO, for completion of advanced individual training (AIT).

3.  His records show, while in AIT, he departed his unit in an AWOL status on 22 July 1969 and returned to military control on 11 August 1969.  He ultimately completed AIT and he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  

4.  His records further show he served in Vietnam from 18 October 1969 to 10 October 1970.  While in Vietnam, he accepted NJP on 9 February 1970 for being found asleep upon his post as a sentinel on perimeter security duty.

5.  Subsequent to completion of his Vietnam tour, he was reassigned to Fort Knox, KY, where he completed training for MOS 63C (Track Vehicle Mechanic) and proceeded to Fort Lewis, WA.  He was assigned to Service Battery, 2nd Battalion, 37th Field Artillery.

6.  On 19 October 1971, he accepted NJP for indebtedness, failing to liquidate debt, and dishonorably failing to keep a promise to repay a just debt.  

7.  On 16 November 1971, he was confined by civil authorities for the civilian charges of UIBC (Unlawful Issuance of Checks) and on 17 November 1971, he was transferred to military confinement.  He was released from military confinement on 24 November 1971.

8.  On 25 November 1971, he departed his unit in an AWOL status and, on 30 November 1971, he was dropped from the Army rolls.  He returned to military control on 7 June 1972. 

9.  On 8 June 1972, his command preferred court-martial charges against him for two specifications of being AWOL from 24 October to 16 November 1971 and 25 November 1971 to 7 June 1972. 


10.  On 29 June 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an under other than honorable conditions discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

11.  In his request for discharge, he indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or an under other than honorable conditions discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

12.  In connection with his request for discharge, he submitted a statement wherein he stated that he went AWOL because his wife at the time was trying to get a divorce and she was living with another person.  Additionally, his captain gave him NJP for failing to pay an $18.00 debt.  He felt his chain of command was not doing enough to help him.

13.  On 5 July 1972, his immediate commander recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.  The immediate commander stated that he counseled the applicant upon his return and that the applicant stated his desire not to be part of the military as his reasons for going AWOL.  

14.  On 7 July 1972, his intermediate commander also recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate.  The intermediate commander stated that it was in the best interest of the Army and the applicant if he were discharged.

15.  On 13 July 1972, his senior commander also recommended approval of his discharge with the issuance of an undesirable discharge certificate.  The senior commander stated that due to the seriousness of the applicant's charges, he did not feel that any discharge other than undesirable was warranted.  Any further 

rehabilitation efforts were futile and the applicant's immediate separation was in the best interest of the Army and the applicant.

16.  On 17 July 1972, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, he was discharged on 21 July 1972.  

17.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions. This form further confirms he completed 2 years, 7 months, and 16 days of creditable active service and he had 227 days of lost time.  Additionally, this form shows in:

	a.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal with Device (1960), and two overseas service bars.

	b.  Item 26a (Non-Pay Periods Time Lost) 24 October - 15 November 1971 and 25 November 1971 - 6 June 1972.

	c.  Item 30 (Remarks) 227 days lost under section 972, Title 10, U.S. Code, from 24 October 1971 to 6 June 1972. 

18.  On 16 June 1977, the Army Discharge Review Board (ADRB) considered his request under the DOD SDRP and directed his discharge under other than honorable conditions be upgraded to an honorable discharge effective 4 April 1977.  Accordingly, his DD Form 214 was voided and he was reissued a DD Form 214 (Report of Separation from Active Duty) that shows he was honorably discharged. 

19.  On 18 July 1978, the ADRB again reviewed his discharge as required by Public Law 95-126.  As a result of this review, the Board determined that he did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD SDRP was not affirmed.  This did not change the upgraded discharge he previously received; but because 

of the new law, he would not be able to use his discharge to qualify for VA benefits.

20.  Army Regulation 635-200 sets forth the policy for administrative separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

21.  On 4 April 1977, 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, had been wounded in action, had 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.

22.  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.  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.

23.  The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service correction boards in order to entitle the service member to VA benefits.

24.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military 

service.  Item 26a (Non-Pay Periods Time Lost) of the version in effect at the time shows time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after ETS will be entered.  Lost time under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran’s benefits; however, the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights of were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  The ADRB reviewed his discharge as required by law and granted him an upgrade of his discharge to an honorable discharge.  However, after a re-review of his discharge upgrade, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  His administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  Notwithstanding the original determination by the ADRB, the official record shows that his service was not satisfactory and that his honorable discharge should not be affirmed.

3.  With respect to his lost time, the evidence of record shows the applicant was reported in an AWOL status from 22 July to 11 August 1969 (21 days) and 24 October to 15 November 1971 (22 days).  He was then confined in civil confinement on 16 November 1971 (1 day) and confined in military confinement from 17 to 22 November 1971 (6 days).  He was also AWOL and in a deserter status from 25 November 1971 to 6 June 1972 (195 days).  He accumulated 227 days of lost time which is properly shown on his DD Form 214

4.  By law and regulation, periods of AWOL or confinement are considered lost time and the time is not creditable service for pay, retirement, or veteran’s benefits.  The lost time is required to be listed on the DD Form 214 even if the periods of lost time were made up.  Since the lost time entries are correctly shown on his DD Form 214, 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)                                         AR20100018597



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018597



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1