IN THE CASE OF:	  

		BOARD DATE:	 29 January 2013 

		DOCKET NUMBER:  AR20120012298 


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 that a bar for compensation pay from the Department of Veterans Affairs (VA) be removed.  In effect, he is requesting that the upgrade of his undesirable discharge to a general, under honorable conditions discharge by the Army Discharge Review Board (ADRB) be affirmed.  

2.  The applicant states his discharge was upgraded to general, under honorable conditions which makes him entitled to "SC" (interpreted to mean service connected) pension.  He contends that his VA doctors told him he is suffering from severe post-traumatic stress disorder (PTSD) and cannot work any longer.  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 October 1969
* DD Form 214 (Report of Separation from Active Duty) for the period ending 25 June 1971
* orders for the Air Medal with "V" Device (heroism)
* Army Commendation Medal Certificate
* General Discharge Certificate 
* letter from the VA

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 25 February 1969 for a period of two years.  On 24 October 1969, he was honorably discharged for the purpose of immediate reenlistment and on the following day, he reenlisted for a period of three years.

3.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 26 July 1969 to 25 July 1970.

4.  He accepted nonjudicial punishment on 14 December 1970 for three specifications of failing to go at the time prescribed to his appointed place of duty, specifically, missing three formations.  

5.  On 13 May 1971, court-martial charges were preferred against him for being absent without leave (AWOL) from 5 January 1971 through 12 May 1971 
(128 days).

6.  He was referred for a psychiatric evaluation by his command and on 25 May 1971, the evaluating psychiatrist diagnosed him with a personality disorder, not otherwise specified (NOS); passive aggressive type and drug use, mixed type.  The psychiatrist pointed out the applicant had a history of marked social inadaptability prior to and during his tour in the military.  His condition was part of a character and behavior disorder due to deficiencies in emotional and personality development of such a degree as to seriously impair his function in the military service.  

7.  On 8 June 1971, the applicant consulted with legal counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he might be deprived of many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

8.  On 24 June 1971, the appropriate authority approved his request and directed that he receive an Undesirable Discharge Certificate.  On 25 June 1971, he was discharged with his service characterized as under other than honorable conditions.  His DD Form 214 shows he completed 1 year, 11 months and 22 days of creditable active service and accrued 128 days of lost time.  His DD Form 214 also shows he earned the following awards:

* Vietnam Service Medal
* "Airborne Combat Badge"
* Republic of Vietnam Campaign Medal
* Army Commendation Medal 
* two Overseas Service Bars

9.  His military records contain orders that show he was also awarded the Air Medal for heroism and a second award of the Army Commendation Medal.

10.  On 14 July 1977, his discharge was upgraded to general, under honorable conditions under the DOD Special Discharge Review Program (SDRP).  

11.  On 6 June 1978, the ADRB reviewed the applicant's discharge upgrade under the SDRP and affirmed his discharge upgrade.  The ADRB noted that his tour in Vietnam was rated as excellent and that during his 1 year and 8 months of service, he only had one recorded act of indiscipline.  The ADRB also noted that his overall record, which included "excellent" conduct and efficiency ratings, plus award of the Air Medal for valor and two awards of the Army Commendation Medal, was sufficiently meritorious to warrant affirmation.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service.

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.  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 excused from completing alternate service in accordance with PP 4313 of 16 September 1974.

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 VA 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 VA 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.

DISCUSSION AND CONCLUSIONS:

1.  After a careful review of the available evidence, and lacking any compelling reasons to the contrary, it is concluded the applicant's meritorious combat service, as evidenced by his earning the Air Medal for heroism and two awards of the Army Commendation Medal, mitigates his military related misconduct sufficiently to warrant an upgrade to his discharge.  

2.  Although the misconduct that led to his discharge cannot be condoned, it does not appear to have been violent or to have had a negative impact on society outside of the military.  Further, the record clearly shows the preponderance of his service was honorable, and in some cases valorous.
3.  Therefore, in view of the applicant's overall record of service, it would be appropriate for the Board to concur with the findings and conclusions of the SDRP and the ADRB and affirm their decision to upgrade the applicant’s discharge to general, under honorable conditions.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the ABCMR affirms the 6 June 1978 decision of the ADRB, which corrected the record of the individual concerned to show he received a general, under honorable conditions discharge on 25 June 1971 in lieu of the undesirable discharge of the same date he originally received.




      _______ _   __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)                                         AR20120012298



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ABCMR Record of Proceedings (cont)                                         AR20120012298



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