IN THE CASE OF:	  

		BOARD DATE:	    1 September 2011

		DOCKET NUMBER:  AR20110003715 


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 correction of his DD Form 215 (Correction to DD Form 214 (Report of Separation from Active Duty)) to show he received a general discharge.  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 his DD Form 214 should show he received a general discharge.

3.  The applicant provides a DD Form 214 and a DD Form 215.

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 for a period of 3 years on 19 February 1968 and held military occupational specialty 52B (Power Plant Operator/Mechanic).  

3.  He served in Vietnam from 27 September 1968 to on or about 15 July 1970.  While in Vietnam, he was honorably discharged on 19 November 1969 for the purpose of immediate reenlistment.  He subsequently executed a 6-year reenlistment on 19 November 1969. 

4.  He was awarded the National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal, and two overseas service bars.

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

* 23 April 1969, for disobeying a lawful order
* 8 June 1969, for being drunk and disorderly
* 6 June 1970, for being absent without leave (AWOL) on 3 and 4 June 1970

6.  On 7 September 1970, he departed his unit in an AWOL status and on 7 October 1970, he was dropped from the Army rolls as a deserter.  He returned to military control on 4 March 1972. 

7.  Subsequent to his return from AWOL, his command preferred court-martial charges against him for one specification of being AWOL from on or about 7 September 1970 through on or about 4 March 1972.

8.  On 21 March 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).

9.  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 or a dishonorable 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 21 March 1972, his immediate and intermediate commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 30 March 1972, consistent with the chain of command's recommendations, 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, if not already a private, be reduced to the lowest enlisted grade.  Accordingly, he was discharged on 5 April 1972.

12.  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 20 days of creditable active service and had 544 days of lost time.

13.  On 26 July 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 a general discharge under honorable conditions.  Accordingly, he was reissued a DD Form 214 that shows he was discharged under honorable conditions.

14.  On 6 July 1978, the ADRB again reviewed his discharge as required by Public Law 95-126.  As a result of this review, the ADRB 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.

15.  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.

16.  Army Regulation 635-200, paragraph 3-7a, 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 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. 

17.  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.

18.  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.

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

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 a general 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. 

3.  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 under honorable conditions discharge should not be affirmed.  In view of the foregoing evidence, 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)                                         AR20110003715



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ABCMR Record of Proceedings (cont)                                         AR20110003715



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