BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20130000454 


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 general, under honorable conditions discharge to an honorable 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 believes his discharge should be upgraded to honorable based on a pardon by President Jimmy Carter.  His discharge was from an alleged drug use issue that was argued in the 1970’s to be a type of warfare presented by the enemy.  VA still has him as not eligible for benefits.

3.  The applicant provides no additional evidence.

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 records show he enlisted in the Regular Army (RA) on 9 January 1970 and he held military occupational specialty 61B (Watercraft Operator).  He was assigned to the 458th Transportation Company, Vietnam, on 17 November 1970.

3.  On 24 March 1971, in Vietnam, he was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued for this period of service shows he completed 1 year, 2 months, and 15 days of net active service.

4.  On 25 March 1971, he reenlisted in the RA.  On 2 April 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to report at the prescribed time to his appointed place of duty.

5.  On 14 August 1971, he was assigned to the 1098th Transportation Company, Vietnam.

6.  On 25 August 1971, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from his assigned unit from 24 to 25 August 1971.

7.  On 6 September 1971, he was apprehended in Vietnam by the military police for the possession of suspected marijuana.

8.  On 13 September 1971, court-martial charges were preferred against him for two specifications of failing to go to his appointed place of duty at the prescribed time, one specification of being disrespectful to a commissioned officer, and one specification of wrongfully possessing marijuana. 

9.  On 19 September 1971, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, and of the procedures and rights available to him.

10.  Following consult with legal counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that 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 and he could expect to encounter substantial prejudice in civilian life. 

11.  On 19 September 1971, his immediate commander recommended approval of his request for a discharge with the issuance of an Undesirable Discharge Certificate.  The commander stated it was his opinion that a trial by court-martial would be non-beneficial to the applicant and the Army. 

12.  On 27 September 1971, his intermediate commander strongly concurred with the immediate commander’s recommendation.  He stated the applicant’s unacceptable attitude, continuing resentment toward military authority, and his habitual shirking of menial tasks assigned to him had proven that further retention would be detrimental to the applicant and the Army.  He recommended the issuance of an Undesirable Discharge Certificate.

13.  On 1 October 1971, his senior commander recommended approval of the applicant’s request for a discharge with the issuance of an Undesirable Discharge Certificate.  He stated the applicant exhibited an inaptitude for the service as demonstrated by his inability to tolerate authority, his constant mistrust of his fellow Soldiers, and his possession and use of habit-forming drugs.  He further stated these undesirable traits of character contributed in a large degree to his continuing disciplinary problems.

14.  On 4 October 1971, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 12 October 1971, he was discharged accordingly.

15.  The DD Form 214 he was issued for this period of service shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service – in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 6 months and 18 days of net active service during this period of service.

16.  On 15 November 1977, the Army Discharge Review Board (ADRB) considered his request for an upgrade of his discharge to honorable under the DOD SDRP.  The board granted him partial relief and upgraded his discharge to a general, under honorable conditions discharge.  The board found he had not successfully completed his tour in Vietnam and was separated from Vietnam for acts of indiscipline.  The ADRB determined he was not entitled to an honorable discharge as the court-martial charges that had been preferred against him on 13 September 1971 were not solely for the personal use of drugs.  In addition, the charges were severe, particularly since they occurred in a combat zone, and at least one of the remaining charges carried the potential for a bad conduct discharge.

17.  On 15 November 1977, the DD Form 214 he was issued for the period ending 12 October 1971 was voided and he was issued a new DD Form 214 (Report of Separation from Active Duty).

18.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service – in lieu of trial by court-martial and that his discharge was upgraded under the DOD SDRP to an under honorable conditions characterization of service.

19.  On 21 April 1978, the applicant was notified that the ADRB reviewed his previously-upgraded discharge as required by Public Law 95-126.  As a result of this review, the board determined the applicant 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 applicant was issued a DD Form 215 (Correction to the DD Form 214), dated 11 July 1978, to reflect this action.

20.  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, an undesirable discharge was considered appropriate at the time the applicant was discharged.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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.  

21.  The Department of the Army 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 (emphasis added).  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  

22.  In part, 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; or received an honorable discharge from a previous tour of military service.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law (emphasis added).  

23.  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.

24.  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 applicant's record shows he was charged with the commission of offenses 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.

3.  The evidence of record confirms the ADRB upgraded the applicant’s discharge to a general, under honorable conditions discharge under the DOD SDRP.  The ADRB appropriately determined he was not entitled to an honorable discharge as the court-martial charges that had been preferred against him were severe, especially because they occurred in a combat zone, and could have resulted in a punitive discharge. 

4.  Although he was charged for wrongfully possessing marijuana, this was not the only charge preferred against him.  He was also charged with two specifications of failing to go to his appointed place of duty at the prescribed time and for being disrespectful to a commissioned officer.  His record of service shows he also received NJP on one occasion for failing to go to his appointed place of duty and on another occasion for being AWOL from a combat zone.  He clearly exhibited a total disregard for military authorities.

5.  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.

6.  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)                                         AR20130000454





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ABCMR Record of Proceedings (cont)                                         AR20130000454



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