IN THE CASE OF:	  

		BOARD DATE:  28 August 2012

		DOCKET NUMBER:  AR20120003552 


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 affirmation of the upgrade of his undesirable discharge to a general discharge under the Special Discharge Review Program (SDRP).

2.  The applicant states he believes his discharge should be upgraded based on the state of his mental condition at the time he departed absent without leave (AWOL) that he contends was the cause for his actions.  He outlines his service in the Republic of Vietnam, coupled with his learning five of his childhood friends were missing in action in Vietnam during his tour and pressure from family and friends while home on leave impacted him to the point he could not return to his unit in Vietnam.  He further states he is being treated for Post Traumatic Stress Disorder (PTSD) that developed as a result of his Vietnam service.  He also indicates his Department of Veterans Affairs (DVA) benefits have been severed as a result of an error in an upgrade action taken on his discharge in 1977.  He claims he assumed his discharge had been upgraded in 1977 only to find the upgrade was not affirmed, which he was unaware of because he was not receiving mail at the time due to a family dispute.

3.  The applicant provides 16 attachments identified in the Supporting Documentation Information portion of his application in support of his request.

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 5 January 1968.  He was trained in and awarded military occupational specialty (MOS) 62L (Wheel Tractor Operator).

3.  The applicant's record shows he served in Vietnam from 3 June 1968 through 14 July 1969.

4.  On 15 July 1969, the applicant departed AWOL.  He was subsequently dropped from the rolls (DFR) of his unit on 13 August 1969.  He remained in an AWOL/DFR status for 93 days until returning to military control at Fort Carson, CO on 16 October 1969.

5.  On 26 October 1969, the applicant departed AWOL from his unit at Fort Carson and he was again reported as DFR of his organization.  This time, he remained away for 914 days until returning to military control at Fort Leonard Wood, MO on 27 April 1972.

6.  On 5 May 1972, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the UCMJ by being AWOL from on or about 15 July through on or about 16 October 1969 and from on or about 26 October 1969 to on or about
27 April 1972.

7.  On 10 May 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel),
chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant elected to submit statements in his own behalf.  In his statement he 


indicated he had been a drug addict at one time and believed if he continued his service he would get back on drugs.  He stated that since his return from Vietnam, he suffered from memory loss and mental unfitness.

8.  On 18 May 1972, the applicant underwent a psychiatric evaluation at the Fort Leonard Wood Mental Hygiene Consultation Service.  The examining physician found the applicant was responsible, both to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  He cleared the applicant for administrative action deemed appropriate by the command.  The examining physician determined the applicant suffered from no psychiatric disorder after a lengthy and complete evaluation.

9.  On 30 May 1972, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service – in lieu of trial by court-martial.  He directed the applicant receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.

10.  On 1 June 1972, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 1 year, 7 months, and
25 days of total active service with 1,007 days of time lost due to AWOL/DFR.
It also shows that during his active duty tenure, he earned the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Expert Marksmanship Qualification Badge with Rifle (M-16) Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar

11.  On 18 May 1977, the Army Discharge Review Board (ADRB) voted to upgrade the applicant's undesirable discharge to a general discharge under the provisions of the SDRP.

12.  On 8 September 1978, the ADRB reviewed the applicant's discharge under the provisions of Public Law 95-126 and voted unanimously not to affirm the general discharge granted under the SDRP.

13.  The SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the 


contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria:  wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with PP 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.  

14.  Public Law 95-126 provided in pertinent part for a "Relook Program."  All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards.  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 DVA benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of DVA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures.

15.  Public Law 95-126, enacted on 8 October 1977, provided that no DVA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD SDRP.  It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases.  The services were required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases which met those standards.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.


	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or a general discharge was authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was considered appropriate.

	b.  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.

	c.  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.  The applicant's request that this Board affirm the general discharge granted under the provisions of the SDRP because he was mentally unfit which caused his misconduct has been carefully considered.  However, the evidence of record contains a psychiatric evaluation completed during his discharge processing wherein the examining physician determined the applicant suffered from no psychiatric disorder, he had the mental capacity to understand and participate in board proceedings, and the applicant was cleared for administrative action deemed appropriate by the command.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Notwithstanding the applicant's Vietnam service and his current condition, absent any evidence of error or injustice in the discharge proceedings and given the applicant was properly evaluated and medically cleared for separation by competent medical authority.
4.  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)                                         AR20120003552



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ABCMR Record of Proceedings (cont)                                         AR20120003552



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