IN THE CASE OF:	  

		BOARD DATE:	  20 August 2013

		DOCKET NUMBER:  AR20130000561


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, in effect, that his previously-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 served for 3 years, but he was still a young man at the time of his discharge.  He thanks God he is now a changed man and he begs the Board for favorable consideration of his request.

3.  The applicant provides no additional evidence in support of his request.

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 10 January 1968.  He completed initial entry training and was awarded military occupational specialty 76W (Petroleum Storage Specialist).  

3.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Thailand from on or about 7 August 1968 through on or about 19 August 1969.  

4.  His record shows he accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on at least eight separate occasions during the period 3 March 1968 through 6 July 1971, for numerous and varied violations of the UCMJ.

5.  On 7 March 1969, before a special court-martial in the Republic of Thailand, the applicant was found guilty of a single charge of being absent without leave (AWOL) and five additional charges for various UCMJ infractions.

6.  On 11 September 1969, before a special court-martial in the Republic of Thailand, the applicant was found guilty of a single charge of assault and an additional charge of AWOL.  

7.  On 2 April 1971, before a special court-martial at Fort Campbell, KY, the applicant was found guilty of a single charge of AWOL.  

8.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date Expiration Term of Service (ETS)) of his 
DA Form 20 shows he was absent without leave (AWOL) or in confinement for approximately 490 days during 14 separate periods between 5 August 1969 and 5 October 1971.

9.  The applicant's immediate commander notified him of his intent to initiate separation proceedings against him, to discharge him from the Army in accordance with the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  On 18 June 1971, the applicant acknowledged receipt of the notification memorandum.  On 22 June 1971, his immediate commander recommended his discharge from the Army under the provisions of Army Regulation 635-212.

10.  On or about 22 October 1971, court-martial charges were preferred against the applicant for being AWOL from on or about 26 July 1971 through on or about 6 October 1971.  

11.  On or about 8 November 1971, after consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

12.  In his request for discharge, he indicated he had not been subjected to coercion with respect to his request and he had been advised of the implications attached to his request.  He further acknowledged he understood if his discharge request were approved 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.

13.  On 26 November 1971, the separation authority approved his request for voluntary discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, and directed he receive an Undesirable Discharge Certificate.

14.  On 1 December 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 2 years, 6 months, and 25 days of creditable active service during this period with 483 days of lost time.  

15.  Pursuant to Presidential Proclamation 4313, dated 16 September 1974, the applicant was granted a clemency discharge.  Accordingly, on 10 December 1975, a DD Form 215 (Correction to DD Form 214) was issued that amended his DD Form 214 by adding to item 30 (Remarks) the statement, "DD 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No 4313."

16.  He was notified of his clemency discharge award and he was instructed to apply to the Army Discharge Review Board (ADRB) for review and possible change of his discharge.  The applicant elected to do so.

17.  On 24 May 1977, the ADRB considered his request under the DOD SDRP and directed that his undesirable discharge be upgraded to an under honorable conditions (general) discharge.  Accordingly, his original DD Form 214 was voided and he was reissued a DD Form 214 that shows he received an under honorable conditions (general) discharge, effective 24 May 1977.  

18.  On or about 16 May 1978, in accordance with Public Law 95-126, the ADRB reviewed his discharge and determined his characterization was warranted in accordance with the DOD SDRP.  Accordingly, on 27 July 1978, a DD Form 215 was issued that shows his characterization of service was warranted under the provisions of the DOD SDRP.

19.  On 7 September 1978, the ADRB re-reviewed his discharge as required by Public Law 95-126 and determined he did not qualify for a discharge upgrade.

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.  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.

22.  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.

23.  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 numerous instances of NJP, 3 instances of court-martial, and an extensive history of AWOL.  He clearly exhibited a total disregard for military authority and a complete lack of discipline and military bearing.

3.  After review of his 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.  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)                                         AR20110015482



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ABCMR Record of Proceedings (cont)                                         AR20130000561



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