IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130020939 


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 upgrade of his undesirable discharge to honorable.

2.  The applicant states his parents abandoned him as an infant and his grandmother became his primary care giver.  She was diagnosed with cancer shortly before he joined the Army and she died while he was serving in Vietnam. After laying her to rest he returned to Vietnam and began going absent without leave (AWOL).  His AWOLs and the trouble be got into occurred after his grandmother's death and were largely brought about as a result of his grief.  His AWOLs which, exceeded 35 days, were not consecutive.  Upon each return from AWOL he rejoined his unit to continue fighting in Vietnam.  He earned several awards for his Vietnam service.

	a.  His discipline and behavioral issues resulted in his receipt of an undesirable discharge in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

	b.  Shortly after his return to the United States he realized he made a huge mistake.  He applied for an upgrade of his discharge under the "President's Discharge Review Program" in June 1977.  His request was approved and his discharge was upgraded to under honorable conditions (general) in July 1977.  Later the Army Discharge Review Board (ADRB) reviewed the upgrade and did not affirm the upgrade, resulting in his discharge being changed back to an undesirable discharge.

	c.  He wanted to correct the mistakes he made in the Army, and after being granted a waiver he re-entered military service with the Alaska Army National Guard (AKARNG) on 10 October 1977.  He served in the AKARNG and was employed full time with the Department of Defense until 30 March 2012 when he retired as a command sergeant major.  However, it should be noted that neither he nor the AKARNG was ever notified his upgrade had been withdrawn.

3.  The applicant provides:

* Self-authored statement, dated 31 October 2013
* Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending on 10 March 1972
* Letter, dated 3 August 1977
* DA Form 2496 (Disposition Form), dated 11 October 1977
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

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 28 August 1970 and served in military occupational specialty 76V (Materiel Storage and Handling Specialist).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  He arrived in Vietnam on or about 10 March 1971.

4.  On 18 May 1971, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* Violating a lawful order by being in an off-limits area
* Wrongfully possessing one ounce, more or less, of marijuana
* Being absent from his place of duty

5.  On 24 November 1971, he accepted NJP under the provisions of Article 15 of the UCMJ for two instance of failing to go to his appointed place of duty.

6.  His record contains two DD Forms 458 (Charge Sheet), dated 23 December 1971 and 24 January 1972, showing court-martial charges were brought against him for being AWOL from on or about:

* 21 November 1971 to on or about 24 November 1971
* 1 December 1971 to on or about 23 December 1971
* 4 January 1972 to on or about 7 January 1972
* 12 January 1972 to on or about 16 January 1972
* 20 January 1972 to on or about 24 January 1972

7.  On 24 January 1972, he 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 or dishonorable discharge, the maximum permissible punishment authorized under the 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 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  He declined to submit a statement on his own behalf.

9.  His record contain six statements issued by various members of his chain of command ranging in date from 25 January 1972 to 2 February 1972 wherein it was stated:

* He was consistently going AWOL for short periods of time, was never present for duty, a malingerer, constantly at sick call, a shirker of duty, and was lazy and wanted to sleep all the time
* His duty performance was unacceptable, he did not know his job, and he could not be depended upon to perform any job without the direct supervision of a noncommissioned officer (NCO) or commissioned officer present
* He did not present a neat personal appearance, was often sloppily dressed, never had a proper hair cut, his personal hygiene was poor, and he did not keep his billet area clean
* He received more than one NJP under the provisions of Article 15 of the UCMJ, would not follow orders, had a negative attitude toward his superiors and the U.S. Army, he created numerous problems for his chain of command, and numerous attempts to counsel him met with no success
* He had long been a suspected user of narcotics 
* He should be eliminated from military service

10.  His record contains a Standard Form (SF) 89 (Report of Medical History) and an SF 93 (Report of Medical Examination), dated 27 January 1972 showing he received a medical examination and was determined to be medially qualified for separation.

11.  His record contains three memoranda dated 31 January 1972 to 
5 February 1972 showing his immediate and senior commanders recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.

12.  On 26 February 1972, the separation authority approved his request for discharge and directed reduction to the lowest enlisted grade of E-1 and the issuance of an Undesirable Discharge Certificate.  On 10 March 1972, he was discharged accordingly. 

13.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with an under other than honorable conditions characterization of service and issued an Undesirable Discharge Certificate.  He completed 1 year, 5 months and 8 days of total active service with 25 days of time lost.

14.  On 14 February 1974, the ADRB, after careful consideration of his military records and all other available evidence, determined he was properly discharged and denied his request for an upgrade.

15.  On 1 June 1977, he applied for consideration for an upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP).

16.  A Department of the Army Office of the Adjutant General and the Adjutant General Center letter, dated 3 August 1977, notified him that his discharge was upgraded to general under honorable conditions effective 5 July 1977 and that new separation documents were enclosed.

17.  On 5 May 1978, the ADRB reviewed the SDRP decision in accordance with Public Law 95-126 and determined not to affirm the findings under the SDRP.

18.  On 11 July 1978, he was issued a DD Form 215 (Correction to DD Form 214) which shows item 27 (Remarks) of his DD Form 214 for the period ending 10 March 1972 was amended.  The entry stated his discharge had been reviewed under the provisions of Public Law 95-126 and a determination was made that his characterization of service was warranted under the provisions of DOD SDRP 4 April 1977.

19.  On 20 July 1978, he 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 him that this action would not change his current discharge, but may impact his ability to obtain Veterans Administration (VA) benefits.

20.  He provided a copy of his NGB Form 22 showing his served in the AKARNG from 11 October 1977 to 31 March 2013 and was honorably separated and transferred to the Retired Reserve in the rank/grade of CSM/E-9.

21.  Army Regulation 635-200 sets forth the policy for administrative separation of enlisted personnel.  Chapter 10 of that regulation 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.

22.  Army Regulation 635-200, 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. 

23.  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.  This program, known as the DOD 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, had been wounded in action, had 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.

24.  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.  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.

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.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He 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 his rights of were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  The ADRB reviewed his discharge as required by law and granted him an upgrade of his discharge to a general discharge.  However, after a re-review of his discharge upgrade, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards. 

3.  His administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  Notwithstanding the original determination by the ADRB, the official record shows that his service was not satisfactory and that his under honorable conditions discharge should not be affirmed.

4.  It is commendable that he was able to serve so successfully in the AKARNG.  However, the DD Form 214 he was issued only covers the period from 28 August 1970 to 10 March 1972.  Performance occurring before or after this period has no bearing on the type or characterization of service listed for the specific period covered by his DD Form 214.

5.  In view of the foregoing, there is insufficient evidence to grant 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)                                         AR20130020939





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ABCMR Record of Proceedings (cont)                                         AR20130020939



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