IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130012295 


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 the records of her deceased husband, a former service member (FSM), be corrected to show he received an honorable discharge.  In effect, she requests that his upgraded discharge be affirmed under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so that she may obtain Department of Veterans Affairs (VA) benefits.

2.  The applicant states the FSM's characterization of service was upgraded to fully honorable.  However, according to the VA his discharge is still listed as undesirable at the National Personnel Records Center in St. Louis, MO.  She needs this corrected so that she may get a veterans grave memorial for him. 

3.  The applicant provides:

* FSM's reissued DD Form 214 (Report of Separation and Record of Service)
* DD Form 177 (Case Report and Directive, Discharge Review Board, Statement of Findings, Conclusions, and Reasons)
* Certificate of Death
* Certificate of Live Birth

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was inducted into the Army of the United States on 19 August 1968.  He was trained in and held military occupational specialty 11B (Light Weapons Infantryman). 
2.  He served in the Republic of Vietnam from 20 January 1969 to 26 January 1970.  He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. 

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for:

* 16 January 1969, absenting himself from his unit from 10 to 16 January 1969
* 5 January 1970, being incapacitated as a result of previous indulgence in intoxicating liquor
* 15 January 1970, absenting himself from his place of duty without authorization from 14 to 15 January 1970
* 23 March 1970, being absent without leave (AWOL) from 1 to 18 March 1970 

4.  On 26 March 1970, he departed his unit in an AWOL status and on 24 April 1970, he was dropped from Army rolls as a deserter.  He was hospitalized on 
22 May 1970 at Valley Forge General Hospital, Phoenixville, PA and upon his release from the hospital on 27 May 1970, he was apprehended by military police and confined at the U.S. Navy Brig in Philadelphia, PA, pending disposition of his case.  He was later attached to the Special Processing Battalion, Fort Meade, MD.

5.  On 12 June 1970 the FSM's immediate commander notified him of his intent to initiate separation action against him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations).

6.  On 12 June 1970, the FSM acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and the procedures/rights available to him.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He further acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf.


7.  On 19 June 1970, the FSM's immediate commander recommended the FSM's separation from the Army under the provisions of Army Regulation 635-212 by reason of unfitness.  The immediate commander indicated that discharge was warranted because of the FSM's habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.  The immediate commander recommended the issuance of an Undesirable Discharge Certificate.

8.  On 29 June 1970, the separation authority approved the FSM's discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the issuance of an Undesirable Discharge Certificate.  The FSM was accordingly discharged on 29 June 1970.

9.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-212 by reason of unfitness with his service characterized as under other than honorable conditions.  He was assigned separation program number (SPN) 386.  He completed 1 year, 7 months, and 5 days of active service during this period and he had 96 days of lost time.  

10.  On 7 July 1977, the FSM was notified that the Army Discharge Review Board (ADRB) considered his request under the DOD SDRP and directed that his undesirable discharge be upgraded to an honorable discharge.  Accordingly, the FSM was reissued a DD Form 214 that shows he was discharged with an honorable characterization of service effective 25 May 1977.

11.  On 3 April 1978, the FSM was notified that the ADRB re-reviewed his previously-upgraded discharge as required by Public Law 95-126.  As a result of this review, he was notified the ADRB's action to affirm his DOD-SDRP discharge upgrade was favorable.  The FSM was issued a DD Form 215 (Correction to the DD Form 214).

12.  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.
13.  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.

14.  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, her deceased husband's upgraded discharge should be affirmed under the DOD SDRP so she may qualify for VA benefits.

2.  The evidence of record shows the FSM's quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service included several instances of NJP.  Accordingly, his immediate commander initiated separation action against him for unfitness (misconduct).  His administrative separation was accomplished in compliance with applicable regulations at the time.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  The ADRB considered his request under the DOD SDRP and directed that his undesirable discharge be upgraded to an honorable discharge.  Accordingly, he was reissued a DD Form 214 that shows he was discharged with an honorable characterization of service effective 25 May 1977.  The ADRB also-reviewed his previously-upgraded discharge as required by Public Law 95-126.  As a result of this review, he was notified the ADRB's action to affirm his DOD-SDRP discharge upgrade was favorable.  The FSM was issued a DD Form 215 (Correction to the DD Form 214).  Unfortunately, the DD Form 215 did not reflect this affirmation.

4.  The FSM is entitled to correction of his records to show his previously-upgraded discharge is affirmed.  





BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the FSM was separated from the service with an honorable discharge on 29 June 1970;

	b.  issuing him an Honorable Discharge Certificate from the Army of the United States, dated 29 June 1970; and

	c.  issuing him a new DD Form 214 reflecting the honorable characterization of service and showing his upgraded DOD-SDRP discharge was affirmed by the ABCMR.




      _______ _   _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)                                         AR20130012295



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012295



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1