IN THE CASE OF:	  

		BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110015482 


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 he is currently being treated for post-traumatic stress disorder (PTSD).

3.  The applicant provides his 2001-2011 VA medical records.

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 (RA) for 3 years on 29 March 1968 and he held military occupational specialty 13A (Field Artillery basic).  He served in Germany from August 1968 to January 1969.

3.  While in Germany, he was honorably discharged on 28 November 1968 for the purpose of immediate reenlistment.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service shows he completed 8 months of creditable active service and he was awarded or authorized the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  He reenlisted in the RA for 3 years on 29 November 1968.  He served in Vietnam from 17 March 1969 to 29 October 1969.  He was reassigned to Fort Campbell, KY, upon completion of his Vietnam service.

5.  On 16 September 1970, he was convicted by a special court-martial of two specifications of being absent without leave (AWOL) from 5 May to 10 July 1970 and 16 July to 13 August 1970.

6.  On 9 October 1970, he departed his unit in an AWOL status and he was dropped from the Army rolls as a deserter on 9 November 1970.  He returned to military control on 3 February 1971.

7.  Subsequent to his return to military control, his chain of command preferred court-martial charges against him for one specification of AWOL from 9 October 1970 to 3 February 1971.

8.  On 3 March 1971, he 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 Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights 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 he had not been subjected to coercion with respect to his request and he had been advised of the implications attached to his request.  He also indicated he understood by requesting discharge he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  On 11 March 1971, his chain of command initiated a Certificate of Unsuitability for Enlistment/Reenlistment [bar to reenlistment] against him citing his habitual AWOL and unsatisfactory conduct and efficiency.  He elected not to make a statement on his own behalf.  The appropriate authority approved his bar at a later date.

11.  On 16 and 23 March 1971, his immediate, intermediate, and senior commanders recommended approval of the applicant's request for discharge with the issuance of an Undesirable Discharge Certificate.

12.  On 26 March 1971, the separation authority approved the applicant's request for voluntary discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200, and directed his reduction to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.

13.  Accordingly, the applicant was discharged on 6 April 1971.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 5 months, and 23 days of creditable active service during this period with 320 days of lost time.  His DD Form 214 also shows he was awarded or authorized the Vietnam Service Medal, Vietnam Campaign Medal, and Army Commendation Medal.

14.  On 24 May 1978, 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 (Report of Separation from Active Duty) that shows he was discharged under honorable conditions effective 6 April 1971.

15.  On 29 August 1978, the applicant was notified that the ADRB reviewed his 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 20 November 1978, to reflect this action.

16.  The applicant submitted copies of his 2001-2011 VA medical records.

17.  Army Regulation 635-200 sets forth the policy for administrative separation of enlisted personnel.

	a.  Chapter 10 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.  However, an undesirable discharge was considered appropriate at the time the applicant was discharged.

	b.  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.

	c.  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, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required 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 corrections 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 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 Army Regulation 635-200, chapter 10, 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 shows the applicant had a disciplinary record, to include one court-martial, a bar to reenlistment, and an extensive history of AWOL.  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 did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered 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 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)                                         AR20110015482



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ABCMR Record of Proceedings (cont)                                         AR20110015482



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