BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100025170 


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 an upgrade of his discharge.  In effect, he requests that his upgraded discharge be affirmed under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so he may obtain Department of Veterans Affairs (VA) benefits.

2.  The applicant states his DD Form 214 (Report of Separation from Active Duty) shows he received a general discharge.  He did not think he had a bad discharge; but, he applied for benefits and he was turned down. 

3.  The applicant did not provide any 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.  On 19 June 1967, the applicant enlisted in the Regular Army for a period of 3 years.  He held military occupational specialty 52B (Power Generation Equipment Repairer) and the highest rank/grade he attained was private first class (PFC)/E-3.  

3.  His records also show he served in Vietnam from on or about 7 December 1967 to 6 December 1968.  He was awarded the National Defense Service Medal, Army Commendation Medal, and Vietnam Service Medal.

4.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 22 January 1968, in Vietnam, for failing to secure his weapon in the proper manner
* On 15 July 1968, in Vietnam, for being apprehended by Military Police (MP) officials for speeding
* On 8 August 1969, for disobeying a lawful order from a superior non-commissioned officer

5.  On 10 February 1970, in Germany, he was convicted by a summary court-martial of one specification of assaulting an MP, one specification of striking another Soldier, and one specification of resisting arrest.  The court sentenced him to be reduced to the lowest enlisted grade, a forfeiture of $109.00 pay, and 45 days of hard labor without confinement.  The convening authority approved his sentence on 12 February 1970.

6.  On 25 May 1970, in Germany, he was convicted by a special court-martial of one specification of unlawfully striking another Soldier and two specifications of being absent without leave (AWOL) from 21 to 24 February 1970 and from 
28 February to 3 March 1970.  The court sentenced him to confinement at hard labor for 40 days and a forfeiture of $70.00 pay for 3 months.  The convening authority approved his sentence on 9 June 1970.

7.  On 1 September 1970, in Germany, court-martial charges were preferred against the applicant for:

* one specification of committing an assault upon a female with the intent to commit rape by forcefully holding her, covering her mouth, laying her on the ground, and attempting to remove her clothes
* one specification of assaulting an individual by pulling out and threatening him with a knife

8.  On 5 November 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable 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 (Enlisted Separations).

9.  In his request for discharge he indicated that he had not been subjected to coercion with respect to his request and that he had been advised of the implications that are attached to his request.  He also indicated he understood 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. 

10.  On 12 November 1970, the applicant's immediate commander recommended approval of the applicant’s request with the issuance of an Undesirable Discharge Certificate.  He further remarked that the applicant's conduct, military behavior, and performance had been a failure.  Rehabilitation efforts proved fruitless and his negative attitude towards the military was detrimental to the morale and efficiency of the unit and its members. 

11.  On 14 November 1970, the applicant's intermediate commander echoed the previous remarks and also recommended that he be issued an Undesirable Discharge Certificate.

12.  On 18 November 1970, the applicant's senior commander stated that the applicant had been completely hostile towards the military and society.  His charges of assault with intent to commit rape and assault with a dangerous weapon were very serious.  He recommended that the applicant be issued an Undesirable Discharge Certificate.

13.  On 10 December 1970, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10, Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade, and the issuance of an Undesirable Discharge Certificate.  


14.  Accordingly, the applicant was discharged on 7 January 1971.  The 
DD Form 214 he was issued at the time shows he had completed a total of 
3 years, 2 months, and 27 days of creditable active service and he had 127 days of lost time.

15.  On 22 July 1977, the applicant was notified that the Army Discharge Review Board (ADRB) considered his request under the DOD SDRP and directed that his undesirable discharge be upgraded to a general discharge under honorable conditions.  Accordingly, the applicant was reissued a DD Form 214 that shows he was discharged under honorable conditions, effective 15 June 1977.

16.  On 26 July 1978, the applicant was notified that the ADRB reviewed the previously upgraded discharge as required by Public Law 95-126.  As a result of this review, the Board determined the applicant did not qualify for an upgrade under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD-SDRP was not affirmed.  The applicant was issued a DD Form 215 (Correction to the DD Form 214), dated 18 July 1978, to reflect this action.

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

	a.  Paragraph 3-7a states 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 member’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.

	b.  Paragraph 3-7b states 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.

18.  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.

19.  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 VA benefits, unless they had been entitled to such benefits before their SDRP review.  

20.  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 authorize the service member VA benefits.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his upgraded discharge should be affirmed under the DOD SDRP so that he may qualify for VA benefits.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10, Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process. 

3.  The available evidence clearly shows the applicant had a disciplinary record, to include three instances of NJP, two instances of courts-martial, multiple instances of being AWOL, and serious charges of assault with the intent to commit rape and assault with a dangerous weapon.  He clearly exhibited a total disregard for military and civil authorities. 

4.  After review of the applicant’s case, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  The applicant’s administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  Notwithstanding the original determination by the ADRB, the official record shows his service was not satisfactory and his general discharge should not be affirmed.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to any further correction of his 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)                                         AR20100025170



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ABCMR Record of Proceedings (cont)                                         AR20100025170



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