IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120004135 


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 an upgrade of his discharge.  In effect, he requests affirmation of the upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so he may receive Department of Veterans Affairs (VA) benefits.

2.  The applicant states he wants his discharge changed so he can apply for VA benefits.  He had a car accident in 1976 which caused a head injury that affected his equilibrium and memory.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* General Discharge Certificate
* Certificate of Appreciation
* documents pertaining to AWARE, Incorporated, support services monthly reviews and cancelled checks

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 in pay grade E-1 on 26 September 1969.  He completed training and was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).  He was advanced to pay grade E-3 on 17 March 1970.

3.  He served in Germany from 17 February to 24 July 1970 and in Vietnam from 18 September 1970 to 21 September 1971.

4.  On 25 March 1971, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for absenting himself from his unit and wrongfully carrying concealed weapons, one .45 caliber pistol and one straight razor with a 1 1/2-inch blade on 12 March 1971.

5.  He was reduced to pay grade E-2 on 26 March 1971.  He was again advanced to pay grade E-3 on 9 May 1971.  He was promoted to pay grade E-4 on 18 June 1971.

6.  He was reported as absent without leave (AWOL) on 6 November 1971.  He was returned to military control on 19 October 1977.

7.  On 20 October 1977, the Commander, U.S. Army Provisional Deserter Processing Center, notified the applicant of his intent to recommend the applicant's elimination from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 15, for AWOL (desertion).  The applicant was advised of his rights.

8.  On 20 October 1977 after consulting with counsel, the applicant acknowledged the contemplated action to separate him by reason of desertion or AWOL under the provisions of Army Regulation 635-200, chapter 15.  He acknowledged he could be issued a discharge under other than honorable conditions (UOTHC) and the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged his eligibility to participate in the DOD SDRP.

9.  On 20 October 1977, the appropriate separation authority approved the applicant's discharge UOTHC under the provisions of Army Regulation 635-200, chapter 15, and directed his reduction to pay grade E-1.

10.  He was discharged accordingly on 20 October 1977.  He was credited with completing 2 years and 10 days of active service with 2,171 days of lost time.

11.  On 25 January 1978, the Army Discharge Review Board (ADRB) voted unanimously to grant the applicant partial relief under the SDRP in that he met two of the primary criteria of that program – specifically, satisfactory completion of a tour of duty in Vietnam and 24 months of satisfactory service.  The ADRB denied relief under the regular criteria because of an extended period of absence totaling approximately 6 years and providing nothing in explanation, extenuation, or mitigation for this extended period of AWOL.

12.  His discharge UOTHC was upgraded to a general discharge and his pay grade of E-4 was restored.  He was reissued a DD Form 214 changing his character of service to under honorable conditions (general) and rank and pay grade to specialist four/E-4.

13.  On 6 November 1978, he was advised that his previous discharge upgrade under the SDRP was not affirmed.  He was provided a DD Form 215 (Correction to DD Form 215) reflecting the appropriate change to his military records.  He was also advised the DD Form 215 in no way changed or modified the upgraded discharge he previously received.  However, because of a new law he would not be able to use that discharge to qualify for benefits under the VA.

14.  On 24 October 1991, the ADRB denied his request for an upgrade of his general discharge.

15.  Army Regulation 635-200, in effect at the time, established the policy and prescribed procedures for separating members for misconduct.  Chapter 15 provided for discharge for AWOL and desertion.  An undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200, 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.

17.  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 that a discharge upgrade to either honorable or general be issued in the absence of compelling reasons to the contrary 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.  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.

18.  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.

19.  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 applicant's contention that his upgraded general discharge should be affirmed has been carefully considered.  However, the evidence of record shows he received nonjudicial punishment under Article 15 for being absent from his unit and wrongfully carrying weapons.  He was AWOL from 6 November 1971 until he was returned to military control on 19 October 1977.  The Provisional Deserter Processing Center commander determined he should be eliminated for AWOL (desertion).

2.  He acknowledged the proposed separation under the provisions of Army Regulation 635-200, chapter 15, and possible receipt of a discharge UOTHC.  The separation authority approved the discharge and directed the issuance of a discharge UOTHC and reduction to pay grade E-1.  He was discharged accordingly on 20 October 1977.

3.  The ADRB reviewed his discharge as required by law and granted him an upgrade of his discharge UOTHC to under honorable conditions.  However, after a secondary review of his discharge upgrade, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.

4.  His administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that might jeopardize his rights.  Notwithstanding the original determination by the ADRB, the official record shows his overall service was not satisfactory and his discharge under honorable conditions should not be affirmed.  In view of the foregoing evidence, he is not entitled to the 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 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)                                         AR20120004135



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ABCMR Record of Proceedings (cont)                                         AR20120004135



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