IN THE CASE OF:	  

		BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120021953 


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 an upgrade of his discharge.  In effect, he requests 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 he applied for VA benefits but he was told his discharge does not qualify him for benefits.

3.  The applicant provides:

* his reissued DD Form 214 (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214), undated
* letter from the VA, dated 14 September 2012

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 1 September 1970.  He completed basic and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 26 October 1970, while still in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a commissioned officer.

4.  He was issued assignment instructions to report to the Overseas Replacement Company, U.S. Army Personnel Center, Oakland, CA.  However, on 28 March 1971, he was reported in an absent without leave (AWOL) status.  He returned to military control on 18 April 1971.

5.  On 19 April 1971, he accepted NJP under the provisions of Article 15, UCMJ for being AWOL from 28 March to 18 April 1971 and for missing movement.

6.  He served in Vietnam from on or about 24 April 1971 to on or about 15 February 1972.

7.  On 28 January 1972, while in Vietnam, he was convicted by a summary court-martial of one specification of wrongfully communicating a threat to injure another Soldier and one specification of being disrespectful towards a noncommissioned officer.  The court sentenced him to restriction and reduction.   The convening authority approved his sentence on 28 January 1972.

8.  On 18 February 1972, upon completion of his Vietnam tour, he departed en route to his next assignment at Fort Riley, KS.  However, on 29 March 1972, he was again reported in an AWOL status.  He returned to military control on 7 April 1972. 

9.  On 10 April 1972, he accepted NJP under the provisions of Article 15, UCMJ, for being AWOL from 29 March to 7 April 1972.

10.  On 13 December 1972, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – 

Unfitness and Unsuitability) for unfitness.  He recommended an undesirable discharge.

11.  The applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and did not submit any statements on his own behalf. 

12.  Subsequent to this acknowledgement, the immediate commander initiated separation action against the applicant.  He stated the discharge action was appropriate because of the applicant's disciplinary problems and lack of motivation.  He would not produce the quality Soldier acceptable in the baseline force.  His behavior was intentional and there were no grounds for other disposition of his case. 

13.  On 20 December 1972, the applicant's intermediate commander recommended approval of the applicant's separation with an Undesirable Discharge Certificate.

14.  On 2 January 1973, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 10 January 1973.  

15.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time of his discharge confirms he was discharged under the provisions of Army Regulation 635-212 with service characterized as under other than honorable conditions with the issuance of an Undesirable discharge Certificate.  He completed a 1 year, 11 months, and 1 day of total active service with 159 days of time lost.

16.  On 4 April 1977, the Army Discharge Review Board (ADRB) directed the applicant's undesirable discharge be upgraded to a general, under honorable conditions discharge.

17.  On 10 August 1978, the ADRB reviewed the applicant’s discharge as required by Public Law 95-126.  As a result of this review, the Board determined that the applicant did not qualify for upgrading under the new uniform standards 

for discharge review.  Accordingly, his upgraded discharge under the
DOD-SDRP was not affirmed.  This did not change the upgraded discharge he previously received; but, because of the new law, he would not be able to use his discharge to qualify for VA benefits. 

18.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It stated, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a)  frequent incidents of a discreditable nature with civil or military authorities; b)  sexual perversion;
c)  drug addiction; d)  an established pattern of shirking; and/or e)  an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

19.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides 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.

	b.  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.

20.  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.

21.  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.

22.  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 contends, in effect, his upgraded discharge should be affirmed under the DOD-SDRP so he may qualify for VA benefits.

2.  The evidence of record clearly shows the applicant had a disciplinary record, to include three instances of NJP, multiple instances of AWOL, a court-martial conviction, and overall lack of potential.  Accordingly, his chain of command initiated separation actions against him for unfitness.  His administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights

3.  After a review of his case, the ADRB decided to upgrade his discharge to a general discharge.  However, upon review, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  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.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or affirming the upgraded general discharge previously directed by the ADRB.

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)                                         AR20120021953



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ABCMR Record of Proceedings (cont)                                         AR20120021953



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