IN THE CASE OF:	  

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130004310 


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 Special Discharge Review Program (SDRP) upgrade be affirmed to show entitlement to full benefits commensurate with receipt of a general discharge. 

2.  The applicant states he was given an upgrade and does not understand why he has to go through this again.

3.  The applicant provides no supporting documentation.

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 3 June 1971 and completed basic combat, basic field artillery, and basic airborne training.
3.  He was absent without leave (AWOL) from 1 January 1972 through 30 March 1972 and again from 17 April 1972 through 23 May 1972, a total of 127 days of lost time.  The applicant had voluntarily returned to military control following the first period of AWOL; however, his second period of AWOL ended by civilian apprehension.

4.  On 1 June 1972, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an undesirable discharge (UD) certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD.

5.  On 27 June 1972, the applicant 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 a characterization of service of under conditions other than honorable.

6.  On 23 June 1977, the Army Discharge Review Board (ADRB) reviewed the applicant's record under the SDRP and he was found to meet the criteria for an upgrade of the characterization of service to under honorable conditions.

7.  On 17 May 1978, the ADRB reviewed the applicant's record and SDRP upgrade.  It determined that the applicant's service did not meet the necessary criteria for an affirmation of the SDRP upgrade.

8.  On 26 October 1978, the applicant was notified that his case had been reviewed and that the ADRB had not affirmed the upgrade.  He was advised that this action did not change his current discharge but it might have an impact on his ability to acquire Veterans Administration (VA) benefits.

9.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, 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.

10.  In October 1978, Public Law 95-126 was enacted.  This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required 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 he had been entitled to such benefits before his SDRP review.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

   b.  Paragraph 3-7b states a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Chapter 10, in effect at the time, provided that a Soldier whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may request a discharge for the good of the service in lieu of a trial.  The regulation required that there was no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel (a member of the Judge Advocate General’s Corps or a person qualified under Article 27(b)(1) of the Uniform Code of Military Justice).  The Soldier was also required to sign the request indicating he understood that he may receive a discharge under other than honorable conditions and the adverse nature of such a discharge.  The regulation also required that the request be forwarded through channels to the general court-martial convening authority.  The regulation also provided that an undesirable discharge certificate will normally be furnished to an individual who is discharged for the good of the service and that the reason for discharge will be "FOR THE GOOD OF THE SERVICE, SPN 246."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  He received an upgrade under the SDRP to a GD; however, the ADRB did not affirm the upgrade which would have granted the applicant full benefits available for such a characterization of service.

3.  The applicant has not provided and the record does not contain any evidence to warrant an affirmation of the SDRP.

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)                                         AR20130004310





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ABCMR Record of Proceedings (cont)                                         AR20130004310



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