IN THE CASE OF:	   

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110023451 


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 under the Department of Defense (DOD) Special Discharge Review Program (SDRP).  

2.  The applicant states, in effect, that:

a.  He served honorably prior to his final discharge.

   b.  He served in Vietnam and he wants his military corrected so that he may be eligible to apply for Department of Veterans Affairs benefits.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Forms 149 (Application for Correction of Military Record), dated 
22 August and 10 November 2011

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 military record shows he enlisted in the Regular Army (RA), in pay grade E-1, on 24 June 1971, for 3 years.  He completed training and was awarded military occupational specialty 72G (Automatic Data Telecommuni-cations Center Operator).  He served in Vietnam from 5 December 1971 through 11 November 1972.  He was honorably discharged for the purpose of immediate reenlistment on 6 May 1974 and issued a DD Form 214 (Report of Separation from Active Duty).  

3.  He reenlisted in the RA in pay grade E-4 on 7 May 1974 and he served in Germany from 11 October 1975 through 7 October 1978 and from 7 July 1980 through 1 September 1983.  He was assigned to Korea on 28 October 1984 and he was promoted to pay grade E-6 on 28 November 1984.  

4.  On 17 April 1985, while assigned to Korea he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing some amount of marijuana on or about 16 March 1985.  He was reduced to pay grade E-5 on 17 April 1985.

5.  A Report of Mental Status Evaluation, dated 3 July 1985, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented, his mood or affect was unremarkable, his thinking process clear, thought content was normal, and his memory was good.  The evaluating physician, a medical assistant, found the applicant to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  

6.  On 10 July 1985, the applicant's company commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for abuse of illegal drugs.  He also advised the applicant of his rights.  

7.  On an unknown date, the applicant consulted with counsel, and acknowledged receipt of the proposed separation action against him for abuse of illegal drugs under Army Regulation 635-200, chapter.  The applicant also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He elected to appear before a board of officers and elected not to submit a statement in his own behalf.
8.  On 29 August 1985, a board of officers found:

   a.  The applicant did freely and willingly possess and use some amount of marijuana, violating his role as an non-commissioned officer and leader.  The applicant use of marijuana in Korea while he possessed a Top Secret Clearance was also a matter of grave concern to the board with respect to his personal trust, confidence, and his ability to perform Army duties.
   
   b.  The applicant's failure to take positive action during the incident and lead or counsel another Soldier rather than freely participate in misconduct with that Soldier was also a matter of grave concern.
   
   c.  Notwithstanding the recommendations of the applicant's immediate supervisors and their strong recommendation to retain the applicant on active duty, the board recommended the applicant be eliminated with a general discharge under honorable conditions.

9.  On 13 September 1985, the appropriate separation authority approved the applicant's discharge action and directed the issuance of a General Discharge Certificate.  

10.  Accordingly, he returned to the continental United States to Separation Transfer Point, Oakland Army Base, Oakland, California and he was discharged from active duty, on 23 October 1985, in pay grade E-5, under the provisions of Army Regulation 635-200, paragraph 14-12, for misconduct-abuse of illegal drugs.  He was credited with completing 11 years, 5 months, and 17 days of active service with no lost time.

11.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge under the DOD SDRP within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Separation), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  

13.  Paragraph 14-12dc(2) of the regulation provided for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs.  It provided that individuals identified as first time drug abusers, grades E-5 through E-9, would be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 could also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  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.

16.  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.

17.  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 evidence of record shows the applicant initially enlisted in the RA on 24 June 1971 and he was honorably discharged on 6 May 1974 for the purpose of immediately reenlistment and issued a DD Form 214 for this period of service. He reenlisted in the RA on 7 May 1974.

2.  On 17 April 1985, the applicant accepted NJP for wrongfully possessing and using some amount of marijuana.  The applicant's company commander initiated action to separate the applicant for abuse of illegal drugs.  After consulting with counsel, the applicant elected to have his case heard by a board of officers.  

3.  On 29 August 1985, the board convened and found that the applicant did freely and willingly possess and use some amount of marijuana.  The board also found that the applicant's failure to take positive action during the incident and lead or counsel another Soldier rather than freely participate in misconduct with that Soldier was also a matter of grave concern.  The board recommended that the applicant be discharged with service characterized as "under honorable conditions" (general discharge).  Accordingly, on 23 October 1985, he was discharged.

4.  The DOD SDRP stipulated that all former service members who received an undesirable or a general discharge during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.  It stipulated that  individuals who received an undesirable discharge 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 (SEA) or in the Western Pacific in support of operations in SEA, 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.

5.  He was not eligible for the DOD SDRP review based on his Vietnam service from 5 December 1971 to 11 November 1972, because he was not issued an undesirable discharge.  The DD Form 214 that he was issued shows he was honorably discharged and the DD Form 214 covered the period of service from
24 June 1971 through 6 May 1974.

6.  Additionally, the applicant was not eligible for an SDRP review for service performed between 7 May 1974 and 23 October 1985, because this service did not fall within the dates stipulated in the DOD SDRP guidelines.

7.  At the time, a discharge under other than honorable conditions was normally appropriate.  It appears his chain of command considered his overall record when he was issued a general discharge.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

8.  His desire to have his general discharge upgraded is acknowledged; however, the Board does not change the type of discharge an individual receives based solely on an individual having received an honorable discharge from a previous enlistment or for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

9.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20110023451



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ABCMR Record of Proceedings (cont)                                         AR20110023451



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