IN THE CASE OF:	

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120008333 


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 general discharge under honorable conditions to an honorable discharge.

2.  The applicant states he was found not guilty of unspecified charges, was given the opportunity to complete his assignment in Vietnam, and was guaranteed an honorable discharge.  He states he served in Vietnam from 29 June 1971 through 24 September 1971.  He has Agent Orange-related illnesses and needs Department of Veterans Affairs (VA) medical care and financial assistance.

3.  The applicant provides an application to the Army Discharge Review Board, a notice of disagreement for a VA claim, a Military Police School Diploma, a VA letter to his electric company, page two of a DA Form 268 (Report for Suspension of Favorable Personnel Action), two pages of a DA Form 20 (Enlisted Qualification Record), his DD Form 214 (Report of Separation from Active Duty), and a DD Form 215 (Correction to the DD Form 214).

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.  Although the applicant's DD Form 214 shows a date of entry of 14 June 1969, the documents prepared at the time of his induction show a date of entry of 30 June 1969.  The available record does not contain a copy of his actual induction document.

3.  The applicant completed training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The record indicates the applicant waived an enlistment option of airborne training to take visual tracker training.

4.  On 20 October 1969, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for 1 day of absence without leave (AWOL).

5.  On 1 November 1969, the applicant received orders to attend the Military Police Training School Visual Tracker Course.  His records contain a copy of a course completion certificate; however, there is no indication he was awarded the associated MOS or that he served in this capacity.

6.  A U.S. Department of Justice Federal Bureau of Investigation records review, dated 1 September 1970, shows three entries:

* 25 April 1968 – charged with automobile theft – released to his mother
* 30 June 1969 – for a national agency check
* 24 August 1970 – for burglary, resisting arrest with violence, and possession of stolen property – no disposition recorded

7.  On 18 January 1972, court-martial charges were preferred for three periods of AWOL from 14 October through 30 November 1971, from 6 through 22 December 1971, and from 23 December 1971 through 17 January 1972.  All three charges show he was AWOL from the 2nd Replacement Company at Camp Casey, Korea.

8.  The applicant's record contains the following DA Forms 268 showing:

	a.  on 29 June 1971 while assigned to Fort Gordon, GA, he was pending disciplinary action for being AWOL from 8 January through 15 June 1971;
	b.  on 28 September 1971, an AWOL charge was dropped (no reason shown) and the applicant was reassigned to Fort Dix for ultimate assignment to the U.S. Army Republic of Vietnam Training Detachment.  He was to report on 30 September 1971;

	c.  on 15 February 1972, he was AWOL as of 14 October 1971 and was being processed for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10; and

	d.  on 16 February 1972, his request for discharge for the good of the service in lieu of trial by court-martial under Army Regulation 635-200, chapter 10, was approved.

9.  The applicant's record contains two DA Forms 20 with incomplete information. 
The first form, audited on 29 June 1971, shows he attended a Benefits of an Honorable Discharge class on 2 July 1969.  It also shows a duty assignment of "casual, en route to Vietnam" effective 17 December 1969.  The next entry is 8 January 1970 showing he was in an AWOL status from Fort Dix, NJ.  This is followed by a 15 June 1971 entry of "Duty Soldier" at the U.S. Army Personnel Control Facility, Fort Gordon, GA.  This is the last entry in this section of this form.

10.  The second DA Form 20, audited on 9 November 1971, commences with a 29 June 1971 entry indicating pre-trial confinement at Fort Gordon, GA.  It shows casual status for three assignments to:  Fort Dix, NJ, on 24 September 1971; Fort Lewis, WA, on 6 October 1971; and en route to Korea on 13 October 1971.  These are followed by a 19 February 1972 entry of Undesirable Discharge, issued by the Personnel Processing Center at Fort Lewis, WA.  Item 28 (Specialized Training) shows he attended the Benefits of an Honorable Discharge class on 8 November 1971.  Item 31 (Foreign Service) shows service in Korea from 13 October 1971 to an undisclosed date.

11.  Item 44 (Time Lost) of the DA Form 20, audited on 9 November 1971, shows the following pencil entries:

* 29 June 1971 to 24 September 1971 – 87 days – "Pretrial Confinement, EM [enlisted member] found not guilty, needs verification"
* erased dates – 77 days – "14 months AWOL"
* erased dates – 164 days – "Court-martial proceedings, found not guilty, the morning report was lost, needs verification"

12.  The record does not contain a copy of the applicant's first request for separation under Army Regulation 635-200, chapter 10.  However, it does contain his second request, dated 8 February 1972.  His unit commander recommended denial of his request and referral to a special court-martial with issuance of a bad conduct discharge.  The discharge authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate.

13.  The applicant was discharged on 20 February 1972 under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  His DD Form 214 shows four periods of lost time totaling 164 days:  29 June-24 September 1971, 14 October-30 November 1971, 6-22 December 1971, and 23 December 1971-17 January 1972.

14.  On 4 April 1977, the Department of Defense (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 Discharge Review Program (Special) (SDRP), required issuance of a discharge upgrade to either honorable or general 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.  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.

15.  On 20 April 1977, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge under the SDRP criteria and upgraded his character of service to under honorable conditions.  There is very limited information on this upgrade and there is no clear documentation as to the justification for granting the upgrade.

16.  In October 1978, Public Law 95-126 was enacted.  This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days or who had been classified as a deserter or a conscientious objector.  DOD was required 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 the service member had been entitled to such benefits before the SDRP review.

17.  On 12 May 1978, the ADRB reviewed the applicant's record and SDRP upgrade.  It determined the applicant's service did not meet the necessary criteria for an affirmation of the SDRP upgrade.

18.  At the time of the applicant's service, a normal tour of duty in either Vietnam or Korea was a minimum of 1 year.

19.  Agent Orange is one of the herbicides and defoliants used by the U.S. military as part of its chemical warfare program during the Vietnam War from 1961 to 1971.

20.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service has met the standards of acceptable conduct and performance of duty.

	b.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  An undesirable discharge is a separation under other than honorable conditions issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

	d.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  Granting entitlement to VA benefits is not within the purview of this Board nor is it normally considered a basis for granting relief.

2.  The entries in the training section of the DA Forms 20 show attendance at a Benefits of an Honorable Discharge class.  These entries indicate attendance in the class, not that he was guaranteed an honorable discharge.

3.  There is no available evidence to substantiate the applicant's contention that any court-martial found him not guilty of any offense.  The available record does not contain any documentation to show he was court-martialed and the cited entry on his DA Form 20 states his alleged court-martial needed to be verified.

4.  The applicant alleges he served in Vietnam from 29 June 1971 through 24 September 1971, a period of 2 months and 25 days.  While the record shows he was to report for assignment to Vietnam twice (1969 and 1971), it does not contain any documentation that he actually served in that country.

5.  The 29 June 1971 DA Form 268 shows he was pending disciplinary action for AWOL on that date at Fort Gordon, GA.  The 28 September 1971 DA Form 268 shows those AWOL charges were dropped and he was reassigned from Fort Gordon, GA, to the Fort Dix, NJ, replacement center for further assignment to the training detachment in Vietnam.  His reporting date is shown as 30 September 1971.  Based on the above, it is unlikely that the applicant ever served in Vietnam.

6.  The record does not contain and the applicant has not provided any evidence that he was exposed to Agent Orange or that he is suffering from any illnesses related to such exposure that would have impaired his ability to serve honorably.

7.  The applicant's assignment to Korea spanned a period from 13 October 1971 to some point in December 1971 or January 1972.  From the limited available documentation, it appears that this service was basically a series of AWOL with no duty assignment recorded other than to the replacement training command.

8.  The applicant's first period of AWOL was in 1969.  He is shown to have continued this pattern of misconduct throughout his remaining period of service. He had a period of AWOL in 1971 that was dropped for unknown reasons and he continued to be AWOL with court-martial charges preferred on 18 January 1972 for three periods of AWOL.  These periods of AWOL are what led to his discharge, not the earlier AWOL charge.

9.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

10.  The rationale or criteria used for granting his upgrade under the provisions of the SDRP are not of record and the ADRB, applying the requirements of the Uniform Standards Act, did not affirm the upgrade.

11.  The record does not contain and the applicant has not provided any evidence to support granting an upgrade of his discharge.

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)                                         AR20120008333



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ABCMR Record of Proceedings (cont)                                         AR20120008333



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