BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120016934 


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, the spouse of a former service member (FSM), requests, in effect, that her late husband's upgraded discharge be affirmed under the Department of Defense (DOD) Special Discharge Review Program (SDRP).

2.  The applicant states her husband's undesirable discharge was upgraded to a general, under honorable conditions discharge under the Public Law (PL) 95-126 and he was issued a general discharge under the provisions of Title 10, U.S. Code, section 1552.  PL 95-126 was a clemency program for Soldiers who ran away to Canada and did not serve in the Vietnam War.  Her husband served his country, risking his life in the Vietnam War.  This has been an ongoing investigation since she discovered it.

3.  The applicant provides copies of their marriage certificate and the FSM's death certificate.

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 FSM's military record shows he enlisted in the Regular Army on 16 June 1971.  He completed training and was awarded military occupational specialty 71B (Clerk Typist).  He was advanced to pay grade E-3 on 22 December 1971.  He served in Vietnam from 17 December 1971 through 26 August 1972.

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on:

* 9 August 1971 – for failing to go to his appointed place of duty on 9 August 1971
* 13 October 1971 - for being absent without leave (AWOL) from 11 to 12 October 1971

4.  On 12 July 1972, the FSM was convicted by a general court-martial of stealing, in conjunction with two other Soldiers, electronic property of the Army and Air Force Exchange Services, with a total value of $8,097.90, on or about 18 March 1972.  The court sentenced him to confinement at hard labor for one year and a forfeiture of $200.00 pay for one year.  The convening authority approved the sentence and ordered it executed on 29 August 1972.

5.  On 20 December 1972, the U.S. Army Court of Military Review affirmed the finding of guilty and only so much of the sentence as provided for confinement at hard labor for 6 months, suspended effective 1 November 1972 until 1 February 1973. 

6.  On 22 January 1973, he departed his unit in an AWOL status; however, he returned to military control on 30 January 1973.

7.  On 3 February 1973, he again departed his unit in an AWOL status.  He was dropped from the Army rolls as a deserter on the same date.  He ultimately surrendered to military authorities and returned to military control on 23 November 1973.

8.  On 27 November 1973, he again departed his unit in an AWOL status and he was subsequently dropped from the Army rolls as a deserter. 

9.  On 25 May 1974, while in a deserter status, he was arrested by civilian authorities and charged with assault and attempted larceny.  

10.  On 29 May 1974, he appeared before a Manhattan Criminal Court judge and the case was adjourned until 11 June 1974.  He was remanded to Rikers Island in lieu of $4,500 bail.  He was returned to military control on 29 May 1974.

11.  The applicant provides a copy of a marriage certificate which shows the FSM and she were married on 28 June 1974.

12.  In a letter, dated 11 September 1974, a counselor with the French and Polyclinic Medical School and Health Center, verified the FSM was a patient at that hospital's methadone maintenance treatment program from 15 March 1973 until 13 June 1974.

13.  Although the DD Form 458 (Charge Sheet) is not available for review with this case, other evidence shows on 17 September 1974, court-martial charges were preferred against the FSM for:

* multiple specifications of AWOL
* one specification of unauthorized absence from 30 January to 30 November 1973 

14.  On 25 October 1974, he was advised the AWOL charges preferred against him on 17 September 1974 had been dismissed; however, the charges for the alleged unauthorized absence were not dismissed.  

15.  On 1 November 1974 after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 10, by reason of willful and persistent unauthorized absence.  He accepted an undesirable discharge and elected to participate in the Presidential Program for Return of Military Deserters.  He also declined a separation document explaining the narrative reason for his separation from the U.S. Army.  

16.  Accordingly, on 11 November 1974, he was discharged from active duty in the rank/grade of private/E-1 with an under other than honorable conditions characterization of service.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 10 months, and 3 days of net active service and he had 506 days of time lost.

17.  On 23 July 1975, the Manager, Reconciliation Service Division, terminated him from the Reconciliation Service program because he did not complete his required period of alternate service.  However, on 11 May 1976, he was reinstated into the program following notification that he was at work on an approved job.
18.  On 25 July 1977, having completed alternate service pursuant to Presidential Proclamation Number 4313, he was issued a Clemency Discharge in recognition of that accomplishment.  He was also issued a DD Form 215 (Correction to DD Form 214) as a result.  

19.  On 7 March 1978, the FSM was notified that the Army Discharge Review Board (ADRB) considered his request under the DOD SDRP and directed that his undesirable discharge be upgraded to a general discharge under honorable conditions.  Accordingly, the FSM was reissued a DD Form 214 that shows he was discharged under honorable conditions effective 3 February 1978.

20.  On 24 October 1978, the FSM was notified that the ADRB reviewed his previously-upgraded discharge as required by Public Law 95-126.  As a result of this review, the ADRB determined the FSM did not qualify for an upgrade under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD-SDRP was not affirmed.  The FSM was issued a DD Form 215 to reflect this action.

21.  The FSM died on 31 July 1980.

22.  On 27 January 1982, in response to the applicant's petition for an upgrade of the FSM's discharge to a fully honorable discharge (ABCMR Docket Number AC81-11080), the ABCMR determined she did not submit sufficient evidence to support her request for an upgrade.  As such, the Board denied the applicant's request for an upgrade of the FSM's undesirable discharge to an honorable discharge.

23.  Army Regulation 635-200 sets forth the policy for administrative separation of enlisted personnel.  The regulation states in paragraph 3-7a 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 will be clearly inappropriate.

24.  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.

25.  In October 1978, PL 95-126 was enacted.  That 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.

26.  The Board has been advised in similar cases that the VA often requires validation or 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 contends, in effect, her late husband's upgraded discharge should be affirmed under the DOD SDRP.  

2.  The FSM's records reveal an extensive history of misconduct that included multiple instances of AWOL/desertion, confinement, a civilian arrest, and a general court-martial for theft.  He clearly exhibited a total disregard for military and civil authorities.  Subsequent to his last period of unauthorized absence he voluntarily requested a discharge from the Army with an undesirable discharge.  He also elected to participate in the Presidential Program for Return of Military Deserters.

3.  The FSM was notified his undesirable discharge had been upgraded to a general discharge effective 3 March 1978.  A DD Form 214 was reissued reflecting this action.  After review of his case, the ADRB decided not to affirm the discharge upgrade under PL 95-126 and the established uniform standards.  He was issued a DD Form 215 reflecting this action.  

4.  The FSM'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.
5.  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.  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 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)                                         AR20120016934





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ABCMR Record of Proceedings (cont)                                         AR20120016934



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