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



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ABCMR Record of Proceedings (cont)                                         AR20100029426



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