IN THE CASE OF:
BOARD DATE: 26 July 2011
DOCKET NUMBER: AR20100029426
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, affirmation of his discharge upgrade to general under honorable conditions granted by the Army Discharge Review Board (ADRB) on 31 May 1977.
2. The applicant states, in effect, he needs the affirmation of his general discharge under honorable conditions to qualify for veterans' benefits.
3. The applicant provides a self-authored letter in support of his application.
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 enlisted in the Regular Army on 2 October 1968 at the age of 17 years, 8 months, and 11 days. His record shows he completed basic combat training, but he did not complete advanced individual training and was not awarded a military occupational specialty. The highest rank/grade he attained while serving on active duty was private/E-2. However, at the time of his discharge, he held the rank/pay grade of private/E-1.
3. The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to formation on 15 March 1969.
4. Special Court-Martial (SPCM) Order Number 176 published by Headquarters, Student Brigade, U.S. Army Southeastern Signal School on 16 April 1969 shows the applicant pled guilty on 1 April 1969 and was found guilty by a SPCM of:
* two specifications of violating Article 86 of the UCMJ by absenting himself without authority from 21 to 26 March 1969 and from 30 March to 2 April 1969
* two specifications of violating Article 95 of the UCMJ by resisting lawful apprehension on 26 March 1969 and for escaping the lawful custody of the charge of quarters on 30 March 1969
5. On 16 April 1969, the following sentence was adjudged:
* confinement at hard labor for 6 months
* forfeiture of $73.00 pay for 6 months
* reduction to the lowest enlisted grade
6. On 16 April 1969, the sentence was approved except for the part of the sentence extending to the execution of confinement at hard labor for 6 months which was suspended for 6 months unless the suspension was sooner vacated.
7. SPCM Order Number 173 published by Headquarters, Special Processing Detachment, on 23 April 1970, shows the applicant's suspended punishment by SPCM Order Number 176 was vacated and the unexecuted portion of the approved sentence to confinement at hard labor for 6 months would be duly executed.
8. On 30 April 1970, charges were preferred against the applicant for being absent without leave (AWOL) for the period 29 July 1969 through 5 April 1970.
9. On 8 May 1970, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.
10. In his request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.
11. On 1 June 1970, the separation authority approved the applicant's request for discharge under Army Regulation 635-200, chapter 10, with issuance of an Undesirable Discharge Certificate.
12. SPCM Order Number 253 published by Headquarters, Special Processing Detachment, on 18 June 1970 shows the applicant's suspended punishment subsequently vacated by SPCM Order Number 173 was remitted effective 19 June 1970.
13. On 19 June 1970, the applicant was discharged accordingly. The DD Form 214 he was issued shows he completed a total of 6 months and 13 days of creditable active service with 434 days of lost time.
14. On 14 April 1977, the applicant requested an upgrade of his discharge under conditions other than honorable by the Department of Defense Special Discharge Review Program (SDRP). On 31 May 1977, his discharge was upgraded to general under honorable conditions.
15. On 1 May 1978, the applicant's discharge was re-reviewed by the ADRB as required by Public Law 95-126. A letter from the Office of the Adjutant General and the Adjutant General Center, dated 21 July 1978, informed the applicant his discharge did not qualify for upgrading under the new uniform standards for discharge review. Accordingly, his upgraded discharge under the SDRP was not affirmed. The letter further informed the applicant that he would not be able to use the discharge to qualify for benefits under the VA.
16. On 31 October 1979 after reconsideration of the applicant's military records and all other available evidence, the ADRB determined the applicant's discharge was properly upgraded. The Secretary of the Army directed the applicant be advised his request for an honorable discharge was denied.
17. The SDRP was directed by memorandum from the Secretary of Defense in 1977. The SDRP stipulated that all former service members who received undesirable discharges (the equivalent now being a discharge under other than honorable conditions) or general discharges during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP. It further indicated that members who received an undesirable discharge during the Vietnam era would have their discharges upgraded if they met one of the following criteria: wounded in combat in Vietnam, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia, completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974, or received an honorable discharge from a previous tour of military service.
18. Title 38, Code of Federal Regulations, section 3.12c, states that benefits are not payable where the former service member was discharged or released by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave for a continuous period of at least 180 days.
19. On 8 October 1977, Public Law 95-126 added the provision for 180 days of continuous absence, if it was used as the basis for a discharge under other than honorable conditions, to the list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA. The law further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly-established uniform discharge review standards.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for affirmation of his discharge upgrade to general under honorable conditions granted by the ADRB on 31 May 1977 was carefully considered; however, there is insufficient evidence to support his request.
2. The evidence of record shows the applicant's request for discharge for the good of the service to avoid trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 was voluntary, administratively correct, and in compliance with applicable regulations. The record further shows the applicant's discharge accurately reflects his overall record of service.
3. The applicant's record includes evidence which shows he received NJP and was AWOL for the period 29 July 1969 through 5 April 1970. Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to the requested relief.
4. The ABCMR does not grant requests for affirmation of discharge upgrades solely for the purpose of making an applicant eligible for veterans' or medical benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her 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 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) AR20100029426
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100029426
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2008 | 20080004963
The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the RVN for 4 months between June and September 1969. On 24 February 1977, the Army Discharge Review Board (ADRB) voted to upgrade the applicant's discharge to a general, under honorable conditions discharge (GD), under the provisions of the Special Discharge Review Program (SDRP) and Presidential Proclamation 4313. Notwithstanding the initial upgrade of his discharge under the SDRP based on his service in the...
ARMY | BCMR | CY2013 | 20130012295
On 7 July 1977, the FSM 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 an honorable discharge. The ADRB considered his request under the DOD SDRP and directed that his undesirable discharge be upgraded to an honorable discharge. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM was separated...
ARMY | BCMR | CY2003 | 2003086693C070212
APPLICANT REQUESTS: In effect, that his discharge, as upgraded to general by the Army Discharge Review Board (ADRB), be affirmed by the Board. APPLICANT STATES : In effect, that his undesirable discharge was upgraded to a general discharge under the Department of Defense Special Discharge Review Program (SDRP); however, when he applied for benefits, he was informed that his discharge is still considered as under other than honorable conditions. Public Law 95-126 precluded automatic...
ARMY | BCMR | CY2013 | 20130018670
The applicant, the sister of a deceased former service member (FSM), requests an upgrade of his general discharge to an honorable discharge in order to bury the FSM at Fort Rosecrans National Cemetery. The applicant states, in effect: a. Subsequent to receiving this legal counsel, the FSM 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 trial by court-martial.
ARMY | BCMR | CY2004 | 20040010992C070208
The applicant requests that his military records be corrected to show his upgraded discharge. On 16 March 1970, the appropriate separation authority approved the discharge request and directed the issuance of an undesirable discharge. On 14 July 1977, the applicant’s discharge was upgraded to general under the Special Discharge Review Program (SDRP).
ARMY | BCMR | CY2013 | 20130015917
BOARD DATE: 4 June 2014 DOCKET NUMBER: AR20130015917 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests, in effect, an upgrade of his general discharge to an honorable discharge. However, his records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged under other than honorable conditions on 5 April 1972 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel),...
ARMY | BCMR | CY2009 | 20090004557
The DD Form 214 he was issued at the time shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions. His records indicate these periods of unauthorized absence consisted of absence without leave, confined civil authorities, and/or confined military authorities. The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service...
ARMY | BCMR | CY2006 | 20060012140
The Board considered the following evidence: Exhibit A - Application for correction of military records. 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...
ARMY | BCMR | CY2010 | 20100012172
The applicant requests upgrade of his general discharge to an honorable discharge. 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...
ARMY | BCMR | CY2014 | 20140001033
The applicant requests, in effect, affirmation of his general discharge under the provisions of the Special Discharge Review Program (SDRP). On 1 June 1977, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to general under honorable conditions under the provisions of the SDRP. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and there is insufficient basis to affirm his general discharge.