BOARD DATE:	  16 May 2013

		DOCKET NUMBER:  AR20120019232 


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:

The applicant defers requests and statements to counsel and does not provide any additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge.  In effect, counsel requests the applicant's upgraded discharge be affirmed under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so the applicant may obtain Department of Veterans Affairs (VA) benefits.

2.  Counsel states:

	a.  The applicant did not discover this injustice until this past year when his ongoing VA benefits were unexpectedly terminated due to a problem with the character of his discharge.

	b.  The applicant served from 12 December 1971 through 12 July 1972 and he was absent without leave (AWOL) for a total of 106 days during this period.  A letter, dated 26 June 1972, shows the applicant was recommended for separation for the good of the service.  A letter, dated 12 July 1972, shows approval of the applicant's discharge.  A DD Form 214 (Report of Separation from Active Duty) shows his character of service was under conditions other than honorable.

	c.  On 20 July 1977, the Army Discharge Review Board (ADRB) upgraded the applicant's undesirable discharge to a general discharge.  In May 1978, the ADRB notified the applicant that he would not qualify for upgrading under the new uniform standards for discharge review.  The letter noted that this action will not change the character of discharge awarded to him under the SDRP.  On 2 August 1978, the ADRB confirmed they were not affirming the character of the discharge awarded under the SDRP.  The Case Report and Directive indicates the applicant's discharge was based on him being AWOL.

	d.  In September 2009, a private examiner (a medical doctor) stated the applicant suffered from severe depression which is directly related to his military service.  A VA examiner noted the applicant first reported receiving psychological treatment shortly after he left the military and he was diagnosed with schizophrenia.  The examiner specifically reported that the applicant had not been able to cope with the stressors of the military and he developed a depressive disorder.

	e.  The medical evidence now established that the applicant was suffering from a mental disorder during his active duty service.  There are now two medical reports establishing that the applicant was suffering from psychological problems at the time he was AWOL.  Given that the applicant was not in a sound state of mind during his service and his psychological problems have been attributed to service events, there are mitigating circumstances that resulted in the applicant's unfavorable discharge.  Therefore, any upgrade of his discharge is appropriate.

	f.  Previous determinations in this matter have not considered the role of mental disability.  It is clear that the applicant has lived a difficult life as a result of depression and drug use issues that have been directly attributed to his military experiences by doctors.  Over the course of the past several years, it is clear that the applicant is attempting to turn his life around.  Given that he suffered from depression that began in the service and was present at the time he was AWOL, these issues causing him great difficulty for many decades after the service, and the fact that he is attempting to turn his life around despite hardships, offer sufficient mitigating circumstances to warrant an upgrade of the character of his discharge.

3.  Counsel provides:

* memorandum, dated 24 May 1972, subject:  Request for Discharge for the Good of the Service 
* memorandum, dated 26 June 1972, subject:  Recommendation for Discharge Under the Provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations)
* DD Form 214
* ADRB Case Report and Directive
* letter, ADRB, dated 2 August 1978
* letter from clinical psychologist
* affidavit
* letter of support
* VA Progress Notes (Disability Benefits Questionnaire)

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 records show he enlisted in the Regular Army in pay grade E-1 on 17 December 1971 for 3 years.  He did not complete advanced individual training and he was not awarded a military occupational specialty (MOS).

3.  On 8 May 1972, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company A, U.S. Army Personnel Control Facility, Fort Meade, MD.  The applicant was charged with two specifications of being AWOL, from 15 January to 6 February 1972 and from 8 February until 25 April 1972.

4.  On 24 May 1972 after consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge. 
He also acknowledged he understood he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate. He further acknowledged he understood he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the VA as a result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 26 June 1972, the applicant's company commander recommended his discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.

6.  On 12 July 1972, the appropriate separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.

7.  On 12 July 1972, he was discharged for the good of the service in lieu of trial by court-martial in pay grade E-1 under the provisions Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  His service was characterized as under conditions other than honorable.  He was credited with completing 3 months and 9 days of net active service with 106 days of lost time.

8.  His records contain and counsel provides a copy of a letter, dated 16 August 1977, which shows he was notified that after reviewing the findings and conclusion of the ADRB, the Secretary of the Army directed notification that his discharge under conditions other than honorable had been upgraded to a general discharge effective 20 July 1977.  A new DD Form 214 was issued reflecting this action.

9.  On 30 May 1978, the ADRB advised him:

	a.  The board had made a preliminary determination that he would not qualify for upgrading under the new uniform standards for discharge review.

	b.  That action would not change the character of discharge awarded to him under the SDRP.  However, by law, their preliminary determination means that now he may not be automatically eligible for benefits from the VA.  If he had or was now receiving such benefits, they should terminate on 7 April 1978 as the law required, subject to VA action.  The United States shall not make any claim to recover benefits received by him prior to 8 April 1978.  However, he could be required to repay the government the value of any benefits received after that date.

	c.  If he wished to have an appearance and final determination prior to 8 October 1978, he could request an appearance before an ADRB panel or hearing examiner.

10.  On 12 December 1978, he was notified that the previous upgrading of his discharge had been re-reviewed by the ADRB as required by Public Law 95-126. As a result of this secondary review, the board determined that he did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD SDRP was not affirmed.

11.  He was issued a DD Form 215 (Correction to DD Form 214), dated 15 August 1978, reflecting this action.

12.  There is no evidence he requested an appearance and final determination before the ADRB prior to 8 October 1978.

13.  Counsel provides a copy of a letter from a clinical psychologist who stated the applicant was suffering from severe depression and PTSD sometime in 2011 which was directly related to his military service.

14.  Counsel also provides a copy of VA Progress Notes, dated 9 November 2011, wherein the applicant completed a VA Disability Benefits Questionnaire.

15.  Army Regulation 635-200 sets forth the policy for administrative separation of enlisted personnel.

	a.  Chapter 10 provides that a member who 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 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 he was discharged.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitled 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 provides 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.

16.  On 4 April 1977, DOD directed the Service Departments 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.

17.  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.

18.  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 evidence of record shows the applicant did not complete training for assignment in an MOS and he was never promoted beyond pay grade E-1.  He was charged with being AWOL for 106 days, misconduct triable by a court-martial.  Upon receipt of the charges, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the offense.  He was discharged accordingly on 12 July 1972.

2.  In August 1977, he was notified that his undesirable discharge had been upgraded to a general discharge effective 20 July 1977.  A DD Form 214 was reissued reflecting this action.  After review of his case, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.

3.  Counsel's contention and the documents he submitted pertaining to the applicant were carefully considered.  The evidence presented does not demonstrate that the applicant had a medically unfitting mental condition that prevented him from knowing right from wrong.

4.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which 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 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)                                         AR20120019232



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ABCMR Record of Proceedings (cont)                                         AR20120019232



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