IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110015529 


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 his general discharge be upgraded to honorable.

2.  He states when he was asked if he would like an early discharge he said yes, but was told that the discharge was for the good of the Army and it would be characterized as honorable.  He also states that he has two DA Forms 20 (Enlisted Qualification Record) in which only one has his correct period of absence without leave (AWOL).  Additionally, he requests his discharge be upgraded so he can receive Department of Veterans Affairs (DVA) benefits.

3.  He provides the following:

* DA Form 20
* DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Enlistment Contract

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's record shows he enlisted in the Regular Army on 25 June 1970.  He served in the Republic of Vietnam from 19 January 1971 to 25 June 1971.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL from 13 July 1971 to 24 August 1971.

4.  The charge sheet or the facts and circumstances pertaining to his discharge proceedings in lieu of a trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), are not contained in his available military records.

5.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 7 February 1972, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of a trial by court-martial.  It shows his service was characterized as under other than honorable conditions. It further shows he completed 1 year, 1 month, and 20 days of total active service with the period 13 July 1971 to 24 August 1971 and 7 September 1971 to
19 January 1972 listed as time lost. 

6.  On 29 April 1977, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB noted that the documents pertaining to his separation were not in his file with the exception of the Staff Judge Advocate's (SJA) review of his case.  The board stated that the contents of the review established he was charged with AWOL from 7 September 1971 to 20 January 1972 (apprehended by civil authorities), requested discharge in lieu of trial, was fully advised of the meaning and probable effect of an undesirable discharge, and all echelons of the his command recommended separation with an Undesirable Discharge Certificate.  The ADRB opined that these facts 
established a firm basis for the application of presumption of regularity.  The 

board elected to upgrade his discharge to Under Honorable Conditions (General) under the "Department of Defense (DOD) Discharge Review Program (Special)."

7.  Army Regulation 635-200 sets forth the basic authority for the 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 a trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   b.  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.

8.  The DOD Special Discharge Review Program (SDRP) was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received undesirable discharges (UDs) (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 a UD 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.

9.  On 8 October 1977, Public Law 95-126 added the provision that 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 DVA.  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.  
10.  Title 38 Code of Federal Regulation (CFR) 3.12 states that an honorable discharge or a discharge under honorable conditions issued through the ABCMR established under Title 10, U.S. Code, section 1552 is final and conclusive on the DVA.  The action of the board sets aside any prior bar to benefits imposed under conditions other than honorable or an undesirable discharge.

11.  The applicant provided copies of his DA Form 20.  One copy shows an audit date of 26 January 1971 and 1 period of AWOL from 13 July 1971 to 11 August 1971.  The other copy shows an audit date of 24 August 1971 and two periods of AWOL:  13 July 1971 to 24 August 1971 and 7 September 1971 to 19 January 1972.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that his discharge should be upgraded because he was told it would be characterized as honorable.  He also maintains he had only one period of AWOL.  

2.  Although a copy of his chapter 10 discharge packet is not in his available records, the ADRB noted the SJA's review of his case established that he was charged with AWOL from 7 September 1971 to 20 January 1972, requested discharge in lieu of trial, was advised of the meaning and probable effect of an undesirable discharge, and all echelons of the his command recommended separation with an Undesirable Discharge Certificate.  Additionally, the fact that he was apprehended questions his intent to return on his own.  

3.  The ADRB opined that these facts established a firm basis for the application of presumption of regularity.  The board upgraded his discharge to a general discharge under honorable conditions.

4.  Evidence of record shows he had two periods of AWOL: 13 July 1971 to 
24 August 1971 for which he received an Article 15 and 7 September 1971 to   20 January 1972 for which he was discharged.  His DA Form 20 dated              26 January 1971 is simply an earlier version of the DA Form 20 dated 24 August 1971 which appears to have been completed prior to all the information concerning his time lost had been correctly annotated on this form.  

5.  Absent any evidence of error or injustice in the discharge process, his discharge accurately reflects his overall record of service.

6.  In view of the foregoing, there is no basis to affirm his general discharge under Title 10, U.S. Code, section 1552 or upgrade his discharge to honorable.

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)                                         AR20110015529





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ABCMR Record of Proceedings (cont)                                         AR20110015529



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