BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110018582 


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 discharge under other than honorable conditions, which was upgraded to a general discharge under honorable conditions by the Army Discharge Review Board (ADRB) and later upgraded to honorable by the same board under the Department of Defense (DOD) Special Discharge Review Program (SDRP) in June 1977, be affirmed.

2.  He states he was the best Soldier he could be considering his youth and his abilities.  He maintains that he applied for benefits through the Department of Veterans Affairs (VA), but was told that the agency did not have to honor his discharge since it was upgraded under the DOD SDRP.

3.  He provides his DD Form 214 (Report of Separation from Active Duty).

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 12 June 1970 at the age of 18. He served in Vietnam from 18 November 1970 to 12 October 1971.  His record shows he was awarded the Army Commendation Medal (ARCOM) with "V" Device and the Combat Infantryman Badge during his Vietnam service.

3.  His disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on
5 September 1971 for disobeying two lawful orders from a superior commissioned officer.

4.  His records show that, on an unspecified date, he underwent a mental status evaluation.  He was determined to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

5.  On 16 September 1971, the applicant's unit commander advised him that proceedings to discharge him under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability) for unfitness with an Undesirable Discharge Certificate were initiated.  The commander cited the applicant's severe character disorders, inability to function within the limits of acceptable military behavior, and inability to adhere to standards of conduct prescribed by authority as the basis for his recommendation.

6.  On 16 September 1971, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.  He also elected not to submit statements on his behalf.

7.  He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued.  He further understood as the result of issuance an undesirable discharge under conditions other than honorable, he may be ineligible for many or all VA benefits under both Federal and State laws.

8.  On 1 October 1971, in a letter through command channels, the unit commander stated that charges were being preferred against the applicant for the following offenses:

* wrongfully appropriating an M-16 rifle of a value of (about) $106.00, the property of the U.S. Government
* wrongfully and willfully discharging an M-16 rifle in the Enlisted Men's Club, under circumstances such as to endanger human life
* failing to obey a lawful order by carrying a firearm into the Enlisted Men's Club 

9.  On 5 October 1971, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212, unfitness.  He directed that the applicant be furnished an Undesirable Discharge Certificate.

10.  His DD Form 214 shows he was discharged on 12 October 1971 under the provisions of Army Regulation 635-212.  His characterization of service was listed as under other than honorable conditions.  He was credited with completing a total of 1 year, 4 months, and 13 days of active service.

11.  On 2 May 1975, the ADRB approved the applicant’s request for an upgrade of his discharge and upgraded his discharge to a general discharge under honorable conditions.

12.  On 21 July 1977, the ADRB notified the applicant that the board considered his application under the DOD SDRP and upgraded his discharge to honorable. However, there is no indication that the ADRB affirmed his SDRP upgraded discharge under the review standards required by Public Law 95-126.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unsuitability and unfitness.  Paragraph 6 provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, or indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees, or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

14.  In 1977, DOD was directed by the President to establish the SDRP.  The SDRP stipulated that all former service members who received undesirable or general discharges during the period 4 August 1964 through 28 March 1973, were eligible for an upgrade review under the SDRP.  It further indicated that individuals who received an undesirable discharge during the Vietnam War 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.

15.  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.  Two of the principal features of Public Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of an upgrade by the Presidential Memorandum of 19 January 1977 or the SDRP unless an eligibility determination is made under the published uniform standards and procedures.  The Board has been advised in similar cases that the VA often requires validation of 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 records show the applicant was 18 years of age at the time of his enlistment and 19 years old at the time of his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for affirming his discharge.

2.  The evidence further shows the ADRB upgraded his characterization of service from under other than honorable conditions to general and later under the SDRP to honorable.  It is reasonable to presume that the upgrade was based on the applicant having distinguished himself in combat as evidenced by the award of the ARCOM with "V" Device. 

3.  While there is a record of distinguished combat service, the evidence of record also shows he received an Article 15 for disobeying two lawful orders.  Additionally, he was charged with:  wrongfully appropriating an M-16 rifle; wrongfully and willfully discharging an M-16 rifle in the Enlisted Men's Club; and failing to obey a lawful order by carrying a firearm into the Enlisted Men's Club.  All of this misconduct occurred during his service in Vietnam.

4.  The ADRB upgraded his discharge to honorable in spite of evidence showing the applicant committed serious acts of indiscipline involving a deadly weapon that would have resulted in harm to his fellow Soldiers and others.  This decision is not in question; however, in light of these serious acts of indiscipline, it is not appropriate to affirm his honorable 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 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)                                         AR20110018582





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ABCMR Record of Proceedings (cont)                                         AR20110018582



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