IN THE CASE OF:	  

		BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120002609 


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 honorable discharge, upgraded under the Department of Defense (DOD) Special Discharge Review Program (SDRP), be upgraded under the provisions of historically consistent uniform standards.  He requests the bar to benefits be lifted so he can receive Department of Veterans Affairs (VA) benefits.

2.  The applicant states he is a Vietnam veteran and had been receiving VA benefits.  When he applied for a non-service related pension the VA told him he didn't qualify for veterans benefits.

	a.  He had an excellent record in Vietnam until he had been in a combat zone for 7 months with no leave.  He was denied leave when everyone else received their leave.

	b.  He and his sergeant had some altercations.  Most veterans he has talked with said many were absent without leave (AWOL) and didn't get into trouble.  Part of his AWOL was when he was in jail and missed reveille, but he was on base.  

	c.  Before he was dismissed from the Army, he was told he had a choice of serving 6 months in Long Binh Jail and serve 6 more months in Vietnam, or be discharged under other than honorable conditions.

	d.  He loves his country and was proud to serve during the Vietnam War and he always did his duties, plus whatever got added.  Throughout his life, since the war, he's always attended to whatever needs to be done and completed it to the best of his ability.  He always went to work clean shaven and in clean and pressed clothes.  He has always striven to be the best person he could be.  He has aided in helping fellow veterans and others who are in need of food or transportation.

3.  The applicant provides:

* his Honorable Discharge Certificate
* his DD Form 214 (Report of Separation from Active Duty) for the period ending 22 December 1969
* two unsigned letters, dated 14 August 2006 and 23 March 2009
* a letter from the Office of the Adjutant General and the Adjutant General Center, Washington, DC, dated 17 June 1977
* a letter from his Congressional representative, dated 15 July 1977
* a Supplemental Statement of the Case (SSOC) from the VA Regional Office (VARO) in Cleveland, OH, dated 25 September 2007
* VARO letter, dated 15 April 2005
* VARO Administrative Decision of 7 November 2005
* his Certificate of Eligibility for loan guaranty benefits from the VA
* 8 reference letters, dated between 25 March 1994 and 26 March 2009
* a certificate of completion for production machinist
* employment records from the Defense Construction Supply Center, Columbus, OH
* a letter from his Congressional representative, dated 4 September 2007

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 inducted into the Army of the United States on 10 May 1968.  He completed training and he was awarded military occupational specialty 36C (Lineman).

3.  He served in the Republic of Vietnam from 13 December 1968 to 9 January 1970.  He was assigned to Headquarters and Headquarters Battery,
3rd Battalion, 82nd Artillery on 25 June 1969.

4.  On 27 October 1969, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order from a commissioned officer.

5.  On 12 November 1969, a special court-martial found him guilty of:

* being AWOL from 6 - 14 August 1969
* being AWOL from 16 September to 16 October 1969
* disobeying a lawful order from a noncommissioned officer
* breaking restriction

His sentence included confinement at hard labor for 6 months that was suspended for 6 months.

6.  On 21 November 1969, he was examined by the division psychiatrist.  The examiner found the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  He was responsible and met retention standards.  The examiner stated his attitude was so negative and fixed he would not benefit from attempts at rehabilitation and should be separated under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability).

7.  His commander notified him that he was being recommended for separation from the service under the provisions of Army Regulation 635-212 for unfitness.  The commander advised him of his right:

* to present his case before a board of officers
* to submit any statement in his own behalf
* to be represented by military counsel appointed by the convening authority, military counsel of his own choice, or civilian counsel at his own expense

8.  The applicant submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  He:

* waived consideration of his case by a board of officers 
* waived a personal appearance
* stated he was not submitting statements in his own behalf 
* waived counsel

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

10.  On 2 December 1969, his commander recommended the applicant be discharged from the military service as unfit under the provisions of Army Regulation 635-212.  His performance was characterized by intentional shirking of his duties and by behavior rendering him repeatedly subject to punitive action. His behavior was not due to incapacity to become a satisfactory Soldier.  His performance of duty had been unsatisfactory.  Further rehabilitative efforts would be useless.

11.  On 17 December 1969, the approving authority waived further counseling and rehabilitation requirements and approved his discharge by reason of unfitness.  He ordered the applicant be issued an Undesirable Discharge Certificate.

12.  On 22 December 1969, the applicant was discharged under the provisions of Army Regulation 635-212 by reason of unfitness - an established pattern for shirking.  He completed 1 year, 5 months, and 23 days of total active service that was characterized as under other than honorable conditions.  He had 50 days time lost.  He was issued an Undesirable Discharge Certificate.

13.  His DA Form 20 (Enlisted Qualification Record) shows he received two conduct and efficiency ratings of unsatisfactory.

14.  On 20 December 1973, the Army Discharge Review Board (ADRB) denied his request for a change in the type and nature of his discharge.

15.  On 17 June 1977, the applicant was notified his discharge was upgraded to an honorable discharge by the ADRB under the criteria of the DOD SDRP.  This 

upgrade action was based on his age, general aptitude, length of service at the time of discharge, education level at time of discharge, entrance into service from a deprived background, and possible personal problems that could have contributed to the acts that led to his discharge.

16.  On 13 December 1978, the ADRB informed the applicant that the previous upgrading of his discharge had been re-reviewed as required by Public Law
95-126.  As a result, the ADRB determined that he did not qualify for upgrading under the new uniform standards for discharge review and, accordingly, his upgraded discharge under the DOD SDRP was not affirmed.

17.  The references he submitted appear to have been submitted, based on the dates of the letters, in support of his claim for benefits from the VA.

18.  The DOD SDRP was directed in a memorandum from the Secretary of Defense in 1977.  The DOD SDRP stipulated that all former service members who received undesirable discharges or general discharges during the period
4 August 1964 through 28 March 1973 were eligible for review under the DOD SDRP.  It further indicated 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 the Republic of 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
* received an honorable discharge from a previous tour of military service

19.  The DOD SDRP also provided secondary criteria that allowed the ADRB to upgrade a discharge if the board believed such upgrading was appropriate based on all the circumstances of a particular case, and on the quality of civilian record made since discharge.  Factors to be considered included:  age, general aptitude, and length of service at time of discharge; education level at time of discharge; entered service from a deprived background; possible personal distress which could have contributed to the acts that led to discharge; entered military with waiver of normally applicable standards; actions that led to discharge alleged at the time to have been motivated by conscience; was discharged for abuse of drugs or alcohol and, if so, any contributing or extenuating circumstances; and record of good citizenship since discharge.

20.  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 an under other than honorable conditions discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the Department of Veterans Affairs.  The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions.  It further required that discharges upgraded under the automatic criteria established under the DOD SDRP be reconsidered under the newly established uniform discharge review standards.  On 29 March 1978, these newly established uniform discharge review standards were published in DOD Directive Number 1332-28.

21.  Army Regulation 635-200 also provided for a general discharge under honorable conditions for an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.  A discharge under honorable conditions was authorized if an individual had been convicted of an offense by general court-martial or convicted by more than one special court-martial in the current enlistment.  However, this decision was discretionary.

22.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  This regulation stated that commanders would not take action under this regulation in lieu of disciplinary action solely to spare an individual who may have committed serious misconduct the harsher penalties which may be imposed under the UCMJ.  Paragraph 6a(4) of the regulation provided that members who had established a pattern for shirking were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

23.  Title 38, Code of Federal Regulations, section 3.12(a) states if the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was told he had a choice of serving 6 months in Long Binh Jail and serve 6 more months in Vietnam, or be discharged under other than honorable conditions.  The special court-martial sentenced him to
6 months confinement, but suspended it for 6 months.  There is no evidence he was given a choice of confinement and additional service in Vietnam or discharge.

2.  On 17 June 1977, the ADRB upgraded the applicant’s discharge from an undesirable discharge to an honorable discharge under the DOD SDRP based on a mandate contained in the established DOD SDRP criteria concerning age, general aptitude, length of service at the time of discharge, education level at time of discharge, entrance into service from a deprived background, and possible personal problems that could have contributed to the acts that led to his discharge.

3.  However, on 13 December 1978 the ADRB re-reviewed his discharge using uniform discharge review standards, as required by Public Law 95-126.  The ADRB determined the applicant did not qualify for upgrading under the new uniform standards for discharge review and, accordingly, his upgraded discharge under the DOD SDRP was not affirmed.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process; therefore, the undesirable discharge he received accurately reflected his overall record of service at the time it was issued.  It is further found the 1978 determination of the ADRB that the honorable discharge issued to the applicant under the provisions of the DOD SDRP did not warrant affirmation given his extensive disciplinary history and record of misconduct was both proper and equitable.

5.  He went AWOL twice while in a combat zone.  His absence could well have compromised the safety of his unit in a hostile environment.  Therefore, his service is unsatisfactory.

6.  Therefore, by historically consistent uniform standards, it is not appropriate to affirm the applicant's discharge.

7.  The bar the applicant desires to have removed refers to the bar to benefits that is determined by the VA.  The VA, in accordance with its own policies and regulations, may make an administrative decision as to whether an individual's period of service is considered as under conditions other than dishonorable for the purpose of VA benefits.  This administrative decision does not establish error or injustice in the Army's characterization of the applicant's service.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120002609



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ABCMR Record of Proceedings (cont)                                         AR20120002609



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