IN THE CASE OF:	  

		BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130011250 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.  [Note:  The applicant's discharge was upgraded to general under honorable conditions effective 6 June 1977 under the Department of Defense (DOD) Special Discharge Review Program (SDRP).  On 8 November 1977, the Army Discharge Review Board (ADRB) voted not to affirm his general discharge.  It appears he is now seeking affirmation of his discharge for the purpose of receiving benefits from the Department of Veterans Affairs (VA).]

2.  The applicant states:

* he was absent from his duty station due to a family medical emergency which he believed required his physical presence
* his superior officer denied his request for compassionate leave and he subsequently left Fort Ord, CA, without permission and this led to his undesirable discharge
* he has since been diagnosed with a medical condition that has been deemed service related and he is being denied VA medical benefits due to the status of his discharge

3.  The applicant provides:

* statement from the Assistant National Field Services Director, Blinded Veterans Association, CA, dated 17 January 2013
* DD Form 214 (Report of Separation from Active Duty)
* Letter of Support, dated 10 April 2013

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 was inducted into the Army of the United States on 1 December 1970.

3.  Summary Court-Martial Order Number 711, issued by Headquarters and Headquarters Command, United States Army Training Center, Infantry, Fort Ord, CA, dated 12 May 1971, shows the applicant pled and was found guilty of being absent without leave (AWOL) on or about 9 April 1971 until on or about 14 April 1971.

4.  Summary Court-Martial Order Number 922, issued by Headquarters and Headquarters Command, United States Army Training Center, Infantry, Fort Order, CA, dated 29 June 1971, shows the applicant pled and was found guilty of being AWOL on or about 11 May 1971 until on or about 4 June 1971.

5.  A DA Form 458 (Charge Sheet), dated 5 April 1972, shows the applicant was charged with being AWOL on or about 16 September 1971 until on or about 5 April 1972.

6.  On 11 April 1972, the applicant 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 discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant acknowledged:
* he had not been subjected to any coercion
* he understood that if the discharge request was approved he could be discharged under other than honorable conditions 
* he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood he could expect to encounter substantial prejudice in civilian life

7.  In conjunction with his request for discharge, the applicant submitted statements in his own behalf that included the statement, "I hate this service as much as you hate me and if I don't get out I'm going AWOL and you will never see me.  Screw it."

8.  On 11 April 1972, the separation authority approved his request for discharge, directed that he be issued an Undesirable Discharge Certificate, and directed that he be reduced to private/E-1.  On 24 May 1972, the applicant was discharged as directed.

9.  On 11 April 1977, the applicant submitted a request for an upgrade of his discharge under the SDRP.

10.  On 9 July 1977, the Office of the Adjutant General and the Adjutant General Center, Washington, District of Columbia, notified the applicant his discharge had been upgraded to a general under honorable conditions discharge effective 6 June 1977.  He was also provided a new DD Form 214 reflecting the upgrade.

11.  On 8 November 1977, the applicant was notified by the President, ADRB that:

* his discharge upgrade could not be affirmed under standards required by Public Law 95-126
* his discharge may impact his ability to acquire VA benefits

12.  The applicant provides statements from the Assistant National Field Service Director for the Blinded Veterans Association who describes incidents leading to the applicant's AWOL, his medical condition, and rehabilitative efforts.  The applicant also provides statements of support from an attorney-at-law assisting him in his efforts for an upgrade of his discharge.  Both statements indicate an affidavit from the Mayor of Atascadero, CA, was provided; however, the application did not contain the affidavit.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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. 

	c.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time.

14.  In 1977, DOD was directed by the President to establish the SDRP.  The SDRP stipulated that all former service members who received undesirable or general discharges during the period 4 August 1964 through 28 March 1973, were eligible for an upgrade review under the SDRP.  It further indicated that individuals who received an undesirable discharge during the Vietnam War era would have their discharges upgraded if they met one of the following criteria:  wounded in combat in Vietnam, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia, completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974, or received an honorable discharge from a previous tour of military service.

15.  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.  Two of the principal features of Public Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of an upgrade by the Presidential Memorandum of 19 January 1977 or the SDRP unless an eligibility determination is made under the published uniform standards and procedures.  The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service correction boards in order to entitle the service member to VA benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows his service was marked by repeated acts of AWOL that culminated in his voluntary request to be discharged in lieu of trial by court-marital for charges of being AWOL.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the applicant voluntarily requested discharge for the good of the service 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 SDRP review process followed in the applicant's case was accomplished in accordance with existing law and regulations in effect at the time and his undesirable discharge was upgraded to a general discharge.  However, in light of 
his extensive periods AWOL, the ADRB correctly voted not to affirm his general discharge after applying the uniform standard rule established by Public
Law 95-126.

3.  In the absence of evidence showing error, injustice, or inequity in the ADRB's decision not to affirm the applicant's general discharge, there is no basis for granting the relief he requests.







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)                                         AR20130011250



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ABCMR Record of Proceedings (cont)                                         AR20130011250



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