IN THE CASE OF:	  

		BOARD DATE:	    8 August 2013

		DOCKET NUMBER:  AR20120020638 


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 refers to counsel.

2.  Counsel requests, in effect, reconsideration of his request to affirm his upgraded discharge by the Army Discharge Review Board (ADRB) on 23 June 1977, under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so he can receive veterans' benefits.

3.  Counsel states:

	a.  the applicant reported to sick call with heightened anxiety about being deployed to Vietnam and leaving his family, after he learned his wife was going to leave him for another man, while she was pregnant with his child;

   b.  he reported to sick call where he expressed suicidal ideations, was tearful and very anxious, diagnosed with acute situational anxiety and prescribed Valium;
   
   c.  while home on leave from his assignment in Vietnam, the applicant remained beyond its expiration and entered into an absent without leave (AWOL) status;
   
   d.  seeing all hope for reconciliation with his wife was lost, the applicant reports he tried to turn himself in, once in Washington, DC and again at Fort Dix, New Jersey;

	e.  to avoid court-martial, the applicant agreed to an expedited discharge from the military but now believes his anxiety disorder influenced this decision even though it meant sacrificing the benefits he now seeks;

   f.  the Department of Veterans Affairs (VA) follows Title 38, U.S. Code, section 5303 and other laws, which require compelling circumstances to determine why the veteran went AWOL, and whether it may warrant a change in discharge character; 
   
	g.  the applicant argues his home life situation was not ideal and was compounded by the extreme anxiety of being away from home, under the threat of life and limb; and

   h.  he was only 19 years old upon his return from Vietnam, and he did what he thought was necessary at the time to preserve his marriage and to remain in contact with his unborn child.

4.  The applicant provides:

* Self-authored statement
* VA Form 21-4138 (Statement in Support of Claim)
* Palmetto Primary Care Physician medical record extracts (4 pages)
* VA Letter, dated 4 June 1981
* VA Medical Record document extracts (17 pages)
* Discharge Packet
* Health Record document extracts (4 pages)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110015529, on 23 February 2012.

2.  During the Board's original review of this case it was determined:

	a.  Although a copy of the applicant's chapter 10 discharge packet was not in his available records, the ADRB noted the Staff Judge Advocate's review of his case established that he was charged with AWOL from 7 September 1971 to 20 January 1972, requested discharge in lieu of trial, was advised of the meaning and probable effect of an undesirable discharge (UD), and all echelons of his command recommended separation with a UD certificate.  Additionally, the fact that he was apprehended questioned his intent to return on his own.  
	b.  The ADRB opined that these facts established a firm basis for the application of the presumption of regularity.  The board upgraded his discharge to a general discharge, under honorable conditions.

   c.  Absent any evidence of error or injustice in the discharge process, the ABCMR determined his discharge accurately reflected his overall record of service and therefore found no basis to affirm his general discharge under Title 10, U.S. Code, section 1552 or upgrade his discharge to honorable.

3.  The applicant now provides a new argument through his counsel indicating he departed AWOL in an attempt to reconcile with his wife who was leaving him for another man while pregnant with his child.  He also provides a copy of his discharge packet and states his agreement to accept an expedited discharge to avoid trial by court-martial was influenced by his extreme anxiety disorder.

4.  The applicant enlisted in the Regular Army on 25 June 1970.  He completed initial entry training and was awarded military occupational specialty 76P (Supply Clerk).

5.  His record shows he served in the Republic of Vietnam (RVN) from 19 January though 26 June 1971.  It also shows he was twice reported AWOL from 13 July through 24 August 1971 and from 7 September through 19 January 1972.

6.  A complete legible charge sheet is not on file in the applicant's record.

7.  On 24 January 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

8.  In his request for discharge, the applicant acknowledged he understood 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.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UD.


9.  On 1 February 1972, the separation authority approved the applicant's request for discharge and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 10, with a UD.  He was discharged accordingly on 7 February 1972.

10.  His DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of court-martial, and that he received a UD.  It also shows he completed 1 year, 1 month, and 20 days of creditable active duty service of which 5 months and 6 days was foreign service.

11.  The applicant provides two Standard Forms 600 (Chronological Record of Medical Care) and a Standard Form 513 (Consultation Sheet) which document the medical care he received from 15 January through 28 April 1971.  These documents show he complained of emotional problems for 5 months and anxiety over having to go to Vietnam and leave his family.

12.  He provides Palmetto Primary Care Physicians and VA Medical Center, Charleston, South Carolina, medical record extracts documenting his medical care during the period 8 July 2008 – 27 December 2011.

13.  On 23 June 1977, the ADRB considered his request under the DOD SDRP and directed that his undesirable discharge be upgraded to GD.  Accordingly, his original DD Form 214 was voided and he was reissued a DD Form 214 that shows he received a GD, effective 7 February 1972.

14.  On 6 September 1978, the ADRB reviewed the applicant's discharge under Public Law 95-126, and determined the characterization of his service was warranted under the new uniform standards for discharge review.  Accordingly, the ADRB unanimously voted not to affirm his discharge under the DOD SDRP.

15.  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, a UD was considered appropriate at the time the applicant was discharged.

   b. Paragraph 3-7a states 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 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 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.

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 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.

18.  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 that included two periods 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.  Counsel is advised that the ABCMR is not subjected to the laws established to govern the VA but operates under separate laws mandated by Congress.  Further, 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.

5.  Finally, counsel contends the applicant's extreme anxiety disorder influenced his acceptance of an expeditious discharge.  However, while the evidence of record confirms the applicant was treated for situational anxiety due to his impending assignment to the RVN, it fails to show this condition hindered his ability to effectively serve or led to his misconduct resulted in his discharge.  The applicant was treated for this condition and subsequently completed 5 months and 6 days of service in Vietnam evidencing his competence to do so.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110015529, dated 23 February 2012.




      _______ _   _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)                                         AR20120020638



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ABCMR Record of Proceedings (cont)                                         AR20120020638



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