IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120011752


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, in effect, that his upgraded discharge be affirmed under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so he may obtain Department of Veterans Affairs (VA) benefits.

2.  The applicant states the President of the United States gave him his upgraded discharge in the 1974-1976 timeframe, and he would like to have it back.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and his DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty).

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 18 August 1969.  He completed initial entry training and was awarded military occupational specialty 91B (Medical Specialist).  

3.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 30 January 1970 to on or about 18 December 1970.  

4.  On or about 24 January 1971, upon his return from the Republic of Vietnam, he was assigned to “Headquarters, Headquarters and Service Battery, 2nd Battalion (C),” 10th Artillery Regiment, 197th Infantry Brigade, Fort Benning, GA.

5.  On 12 July 1971, he accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his assigned unit during the period on or about        16 June 1971 to on or about 9 July 1971. 

6.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date Expiration Term of Service (ETS)) of his 
DA Form 20 shows he was AWOL or in confinement during the following periods:

* from on or about 16 June 1971 to on or about 9 July 1971
* from on or about 3 September 1971 to on or about 15 November 1971
* from on or about 16 November 1971 to on or about 12 January 1972 (confined at the hands of military authorities)
* from on or about 13 January 1972 to on or about 8 October 1972
* from on or about 9 October 1972 to on or about 29 November 1972 (confined at the hands of military authorities)

7.  Special Court-Martial Order Number 10, issued by Headquarters, 101st Airborne Division (Airmobile) and Fort Campbell, Fort Campbell, KY, dated       31 January 1973, shows he was found guilty of two specifications of the Charge of violating Article 86 of the UCMJ.  Specifically, he was found guilty of being AWOL from his unit of assignment from on or about 3 September 1971 to on or about  13 November 1971, and from on or about 13 January 1972 to on or about 
9 October 1972.  He was sentenced to be discharged from the service with a bad conduct discharge, to be confined at hard labor for 4 months, to forfeit $150.00 pay per month for 4 months, and to be reduced to the grade of private/E-1.  The sentence was adjudged on 11 December 1972.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.

8.  Item 44 of his DA Form 20 show he was AWOL during the following periods, after his conviction by special court-martial:

* from on or about 4 February 1973 to on or about 20 May 1973
* from on or about 11 June 1973 to on or about 19 July 1973

9.  His record contains a DD Form 458 (Charge Sheet) that indicates further court-martial charges were contemplated against the applicant, in view of his AWOL periods following his first special court-martial conviction.  However, it is unclear whether this form was signed by the applicant's chain of command or whether charges were eventually preferred.

10.  On 7 August 1973, during the appellate review of his discharge proceedings and after consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

11.  In his request for discharge he indicated he had not been subjected to coercion with respect to his request and he had been advised of the implications attached to his request.  He also indicated he understood by requesting discharge he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood if his discharge request were approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

12.  On 7 September 1973, the separation authority approved his request for voluntary discharge for the good of the service in accordance with chapter 10, Army Regulation 635-200, and directed he receive an Undesirable Discharge Certificate.

13.  On 13 September 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 2 years, 4 months, and 19 days of creditable active service during this period with 564 days of lost time.  

14.  Pursuant to Presidential Proclamation 4313, dated 16 September 1974, the applicant was granted a clemency discharge.  Accordingly, on 11 February 1976, a DD Form 215 was issued that amended his DD Form 214 by adding to item 30 (Remarks) the statement, "DD 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No 4313."
15.  On 11 March 1976, he was notified of his clemency discharge award.  Additionally, he was instructed to apply to the Army Discharge Review Board (ADRB) for review and possible change of his discharge.  The applicant elected to do so.

16.  On 27 October 1976, the ADRB considered his request under the DOD SDRP and directed that his undesirable discharge be upgraded to an under honorable conditions (general) discharge.  Accordingly, his original 
DD Form 214 was voided and he was reissued a DD Form 214 that shows he received an under honorable conditions (general) discharge, effective 13 September 1973.  Additionally, his reissued DD Form 214 shows he was awarded or authorized the following awards:

* National Defense Service Medal
* Vietnam Service Medal with 3 bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal
* Combat Medical Badge
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Automatic Rifle Bar

17.  On 17 September 1981, the ADRB determined he was properly discharged and denied his request for a discharge upgrade.

18.  Army Regulation 635-200 sets forth the policy for administrative 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.  However, an undesirable discharge was considered appropriate at the time the applicant was discharged.

   b. Paragraph 3-7a states 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 states 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.  

19.  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.  In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, 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.

20.  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 were required.  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.

21.  The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service corrections boards in order to authorize the service member VA benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army 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.

2.  The available evidence shows the applicant had a disciplinary record, to include one court-martial, and an extensive history of AWOL.  He clearly exhibited a total disregard for military and civil authorities.

3.  After review of the applicant's case, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  The applicant's administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  Notwithstanding the original determination by the ADRB, the official record shows his service was not satisfactory and his general discharge should not be affirmed.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to any further correction 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)                                         AR20110015482



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ABCMR Record of Proceedings (cont)                                         AR20120011752



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