IN THE CASE OF: 

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130018670 


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, the sister of a deceased former service member (FSM), requests an upgrade of his general discharge to an honorable discharge in order to bury the FSM at Fort Rosecrans National Cemetery.

2.  The applicant states, in effect:

   a.  The FSM returned from Vietnam filled with terror, a torn body, and addicted to drugs.  He told the applicant his discharge had been upgraded and that he would be compensated for the injuries he sustained in Vietnam.

   b.  On the last day of his life, the applicant asked the FSM if he had made any plans.  The FSM stated the Department of Veterans Affairs (VA) would take care of him because he had received the Purple Heart. 
   
   c.  The applicant contacted the VA for help with the burial, but was told that despite the FSM's upgraded discharge, he was unable to have his ashes interned at Fort Rosecrans National Cemetery.   

3.  The applicant provides:

* a self-authored statement
* several letters and documents from the VA
* a letter from the National Personnel Records Center
* 2 DD Forms 214 (Report of Separation from Active Duty)
* 2 DD Forms 215 (Correction to DD Form 214)
* a photograph
* Certificate of Birth
* Certificate of Death
* associated funeral arrangement documents
* several pages of medical records

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 28 January 1968 at the age of 18 years, 6 months, and 23 days.  

2.  The FSM's record contains Special Court-Martial Order Number 2569, issued by Headquarters Troop Command, U.S. Army Training Center, Fort Ord, CA, dated 27 September 1968, which shows he pled guilty and he was found guilty of absenting himself from his organization from 17 June to 11 September 1968.

3.  The FSM subsequently completed training and he was awarded military occupational specialty 64A (Light Vehicle Driver), and he was transferred to Vietnam.

4.  His record shows he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 17 March 1969, for being absent without leave (AWOL) from 28 February to 17 March 1969
* 20 May 1970, for being AWOL from 13 through  24 April 1970
* 4 August 1970, for AWOL from 11 June to 7 July 1970

5.  On 25 September 1970, the FSM consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the FSM voluntarily 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.

6.  He acknowledged he understood that if his discharge request was approved, 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 elected to submit a statement in his own behalf and stated the reason for his request was he didn’t believe he was doing the Army any good.  He had been AWOL numerous times and doubted that he would stop going AWOL if he were returned to duty.  He stated he had been in combat from November 1968 to April 1969, when he was shot.  He submitted for conscientious objector status prior to departing to Vietnam, but it made no difference to the Army.  He was now marked for life with battle scars and after hospitalization in Japan for his wounds, he was still sent back to Vietnam.  

7.  On 29 October 1970, the separation authority approved the FSM's request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 4 November 1970, the FSM was discharged accordingly.  He completed 2 years, 5 months, and 11 days of total active service with 146 days of time lost.

8.  On 18 May 1977, the FSM applied for consideration for an upgrade of his discharge under the Department of Defense Special Discharge Review Program (SDRP).

9.  A Department of the Army Office of the Adjutant General and the Adjutant General Center letter, dated 26 July 1977, notified the FSM that his discharge was upgraded to general under honorable conditions effective 24 June 1977, and that new separation documents were enclosed.

10.  On 30 June 1978, the Army Discharge Review Board (ADRB) reviewed the SDRP decision in accordance with Public Law 95-126 and determined not to affirm the findings under the SDRP.

11.  On 24 July 1978, the FSM was issued a DD Form 215 which shows           item 27 (Remarks) of the FSM's DD Form 214 for the period ending 4 November 1970 was amended to show the entry "DISCH [Discharge] REVIEWED UP [under the provisions of] PL [Public Law] 95-126 AND A DETERMINATION MADE THAT CHARACTERIZATION OF SERVICE WAS WARRANTED UP [under the provisions of] DOD [Department of Defense] SDRP 4 APR 77 [4 April 1977].

12.  On 2 August 1978, the FSM was notified by the Department of the Army Office of the Adjutant General and the Adjutant General Center that the ADRB could not affirm his SDRP upgraded discharge under the review standards required by Public Law 95-126.  This letter further informed the FSM that this action would not change the upgraded discharge he had previously received; however, because of the new law, he would not be able to use the discharge to qualify for benefits under the VA.

13.  On 9 October 2013, his record was corrected to show award of the Purple Heart.
14.  The applicant provided several pages of medical progress notes from the VA medical system.  These progress notes provide a synopsis of the FSM's medical treatment and state of mind.  It further shows the FSM was being treated as part of a Drug and Alcohol Rehabilitation Residential Program.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  Paragraph 3-7a provides 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.

16.  Public Law 95-126 provided for a "Relook Program."  All cases upgraded from under other than honorable conditions under the SDRP or the extension to Presidential Proclamation 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were:

	a.  the addition of 180 days of continuous unauthorized absence or other reasons (e.g., conscientious objector, deserters) for discharges which act as a specific bar to eligibility for VA benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration of term of service; and

	b.  prospective disqualification for receipt of VA benefits for those originally qualifying as a result of an upgrade by authority of the Presidential memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her brother's general discharge should be upgraded to a discharge with entitlement to veterans' benefits was carefully considered.

2.  The evidence of record shows the FSM was properly and equitably discharged in accordance with the regulations in effect at the time and the type of discharge directed and the reasons for separation were appropriate.

3.  Although the FSM's character of service was upgraded under the provisions of the SDRP, the ADRB determined that his overall record of service did not warrant affirming the SDRP findings.  Therefore, his DD Form 214 is correct as currently constituted.

4.  The FSM's record of service shows he was routinely AWOL during his service, even before he went to Vietnam, for a total of 146 days.  The quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel for an honorable discharge.

5.  Notwithstanding the statements provided by the applicant and the FSM's post-service conduct, the ABCMR does not grant requests for discharge upgrades solely for the purpose of making service member's eligible for veterans' benefits.

6.  In light of the foregoing, there is no basis for upgrading the FSM's discharge; therefore, the applicant is not entitled to the requested relief.

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)                                         AR20130018670



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ABCMR Record of Proceedings (cont)                                         AR20130018670



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