IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110024434 


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 that his undesirable discharge be upgraded to an honorable or general discharge so that he can obtain Department of Veterans Affairs (VA) medical benefits for Agent Orange related prostate cancer, ischemic heart disease, and post-traumatic stress disorder (PTSD). 

2.  The applicant states that he had already reenlisted in Vietnam and had been awarded the Combat Infantryman Badge (CIB) when he went home on emergency leave due to his sister-in-law’s death.  He goes on to state that he did not know at the time that he was suffering from PTSD and while at home on leave his PTSD was aggravated by his mother’s marital affair, fights with anti-war protesters, and the loss of his sister-in-law, who was like his own sister.  He further states that he snapped and went absent without leave (AWOL).

3.  The applicant provides a statement in support of his claim.

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 was single when he enlisted in the Regular Army 10 August 1967 for a period of 3 years.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training as a light weapons infantryman at Fort Gordon, Georgia before being transferred to Vietnam on 5 March 1968.

3.  He was advanced to the pay grade of E-4 on 1 August 1968, and on              28 September 1968 he was honorably discharged for the purpose of immediate reenlistment.  On 29 September 1968, he reenlisted for a period of 3 years and training in Army Career Group 62 (Construction Engineer).  He was reassigned on 4 October 1968 to an engineer company for duty as a tractor operator.

4.  On 13 November 1968 he was reported as being AWOL and he remained absent in desertion until he was returned to military control at Fort Riley, Kansas on 15 August 1969 and charges were preferred against him.

5.  On 23 September 1969 he was convicted pursuant to his plea by a special court-martial of being AWOL from 13 November 1968 to 14 August 1969.  He was sentenced to confinement at hard labor for 1 month (suspended for 1 month).

6.  The applicant again departed AWOL on 9 October 1969 and remained absent in desertion until he was apprehended by civil authorities in Mt. Pleasant, Michigan on 8 September 1970 and was returned to military control on 18 September 1970.

7.  He again departed AWOL on 20 October 1970 and remained absent in desertion until he was apprehended by civil authorities in Grand Rapids, Michigan on 24 February 1971 and was returned to military control on 25 February 1971.

8.  Charges were preferred against the applicant at Fort Riley on 17 March 1971 for being AWOL from 9 October 1969 to 18 September 1970 and 20 October 1970 to 25 February 1971.

9.  On 18 March 1971 the applicant’s commander initiated action to discharge him under the provisions of Army Regulation 635-212 for unfitness.  He cited the applicant’s 794 days of lost time and his negative attitude as the basis for his recommendation.

10.  After consulting with counsel the applicant waived his rights and elected to submit a statement in his own behalf in which he stated that he had excellent ratings up until the time he went AWOL.  He went on to state that he saw action in Vietnam daily until he departed on emergency leave.  He also stated that he knew he messed up and hoped that his service would be taken into account when considering his discharge. 

11.  The appropriate authority (a major general) approved the recommendation for discharge on 5 May 1971 and directed that he be furnished an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions on 12 May 1971 under the provisions of Army Regulation 635-212 for unfitness.  He had served 1 year, 1 month and 19 days of active service and had 794 days of lost time due to AWOL during the period under review.  He was awarded the National Defense Service Medal, Vietnam Service Medal, CIB, and the Republic of Vietnam Campaign Medal.

13.  On 27 June 1977 the applicant’s discharge was reviewed by the Army Discharge Review Board (ADRB) under the Special Discharge Review Program (SDRP) which voted to upgrade his undesirable discharge to a general discharge based on his previously-issued honorable discharge.

14.  A letter was dispatched to the applicant informing him that while his discharge had been upgraded to a general discharge under the SDRP, the ADRB had not affirmed his discharge.  He was also informed that he could apply to that board to have his discharge affirmed in order that he may qualify for benefits administered by the VA.

15.  On 12 June 1978, the ADRB notified the applicant that his discharge had been re-reviewed by the ADRB as required by Public Law 95-126 and that the ADRB had determined that his discharge did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the SDRP was not affirmed and thus he would be ineligible for benefits administered by the VA.

16.  The Department of Defense SDRP provided for the review of Vietnam era less-than-honorable discharges in the spirit of compassion.  Compelling reasons for upgrade under the primary criteria were the award of a decoration or service medal, wounded in action, satisfactory completion of a tour of duty in Southeast Asia, receipt of a prior honorable discharge, or completion of satisfactory service of 24 months prior to discharge.  Reasons for granting an upgrade under secondary criteria included age, aptitude, education level, alcohol/drug problem, record of good citizenship, etc.

17.  Public Law 95-126 precluded automatic granting of some VA benefits on the basis of upgrading a discharge given under other than honorable conditions by action of the ADRB – SDRP.

18.  A Department of Defense Directive, dated 29 March 1978, announced uniform standards for the review of discharges or dismissals to ensure historically consistent uniformity as required by the provisions of Public Law 95-126.

19.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.   

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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.

21.  Army Regulation 635-200, paragraph 3-7b, states 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.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case.

3.  The applicant's record of service has been considered; however, his record of service alone is not sufficiently mitigating when compared to an excessive amount of lost time and the lack of mitigating circumstances at the time. 
4.  Accordingly, his discharge as upgraded under the SDRP does not warrant affirmation and his discharge does 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)                                         AR20110024434





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ABCMR Record of Proceedings (cont)                                         AR20110024434



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