IN THE CASE OF:	  

		BOARD DATE:  23 February 2012

		DOCKET NUMBER:  AR20110017227 


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, that his general discharge under the provisions of the Special Discharge Review Program (SDRP) be upgraded to honorable.

2.  The applicant states:

* the quality of his service including 9 months of combat in Vietnam before being injured was generally good
* serious problems occurred when his personnel/finance records were lost
* when he was sent to Fort Hood he had no money and he was treated unfairly by his chain of command; he was provided no assistance in getting his pay
* he applied for a discharge upgrade in the 1970s and granted a general discharge under the SDRP
* he recently realized he is not eligible for Department of Veterans Affairs (VA) benefits  

3.  The applicant provides no documentary evidence.

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 24 September 1968 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11B (light weapons infantryman).  He arrived in Vietnam on 9 March 1969.

3.  On 11 March 1970, he was convicted by a special court-martial of violating two lawful general regulations, being absent without leave (AWOL) from 
3 February to 14 February 1970, wrongfully using with the intent to deceive a certain instrument purporting to be permissive orders, and possessing marijuana.  He was sentenced to be confined at hard labor for 2 months, a forfeiture of $50.00 pay for 2 months, and to be reduced to pay grade E-1.  On 26 March 1970, the convening authority approved the sentence. 

4.  He returned to the United States on 13 April 1970.

5.  On 14 July 1970, nonjudicial punishment (NJP) was imposed against the applicant for behaving with disrespect towards a superior commissioned officer.

6.  On 23 October 1970, NJP was imposed against the applicant for violating a lawful general regulation.

7.  On 29 March 1971, he went AWOL and returned to military control on 18 July 1971.  He went AWOL again on 10 August 1971 and returned to military control on 12 August 1971.  On 29 September 1971, charges were preferred against the applicant for these AWOL periods.  Trial by special court-martial was recommended.  

8.  On 16 October 1971, after consulting with counsel, the applicant submitted a request for 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.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

9.  On 15 December 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

10.  He was discharged with an undesirable discharge on 23 December 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served a total of 2 years, 
7 months, and 13 days of creditable active service with 226 days of lost time.

11.  On 20 July 1977, the applicant's records were reviewed under the provisions of the SDRP and a general discharge was directed following review under the provisions of Public Law 95-126.  On 28 June 1978, the Army Discharge Review Board (ADRB) reviewed the applicant's case as required by Public Law 95-126 and did not affirm his SDRP discharge upgrade (a general discharge).

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7b, provides 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.

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the purpose of obtaining VA benefits.

2.  The applicant's administrative separation in 1971 was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  On 20 July 1977, the applicant's undesirable discharge was upgraded to a general discharge under the SDRP.  On 28 June 1978, the general discharge was not affirmed under the provision of Public Law 95-126.

4.  His record of service included two NJPs, one special court-martial conviction, and 226 days of lost time.  In addition, his misconduct, including AWOL and possession of an illegal drug, started before he left Vietnam.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade.

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)                                         AR20110017227



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ABCMR Record of Proceedings (cont)                                         AR20110017227



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