IN THE CASE OF:  

		BOARD DATE:  9 September 2014	  

		DOCKET NUMBER:  AR20140000358 


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, affirmation of his general discharge under the provisions of the Special Discharge Review Program (SDRP).
 
2.  The applicant states:

* he served in Vietnam and is being treated for post-traumatic stress disorder
* he was a highly-decorated veteran with many awards and decorations
* he wants Department of Veterans Affairs (VA) benefits

3.  The applicant provides:

* SDRP documentation
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice)
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20120017114

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 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 January 1969 for a period of 2 years.  He completed his training and was awarded military occupational specialty 11C (infantry indirect fire crewman).  He arrived in Vietnam on 15 July 1969.

3.  Records show he was absent without leave (AWOL) from 24 February 1970 to 23 March 1970.

4.  On 21 May 1970, nonjudicial punishment (NJP) was imposed against him for being AWOL from 12 May 1970 to 19 May 1970.

5.  He departed Vietnam on 24 July 1970.

6.  Records show he was AWOL from 24 July 1970 to 28 October 1970.

7.  The facts and circumstance surrounding his discharge are not available.  However, his Army Discharge Review Board (ADRB) proceedings state:

	a.  A Staff Judge Advocate's statement, dated 1 November 1972, states the applicant was convicted by a summary court-martial of being AWOL (dates unknown). 

	b.  He was again AWOL from 8 March 1971 to 12 October 1972 and charges were preferred against him for this AWOL period.

	c.  He requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He declined the opportunity to consult with counsel.

8.  On 6 November 1972, he 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 and issued an Undesirable Discharge Certificate.  He completed 1 year, 9 months, and 21 days of total active service with 721 days of lost time.

9.  On 18 May 1977, the ADRB upgraded the applicant's discharge to general under honorable conditions under the provisions of the SDRP.

10.  In February 1979, the ADRB, having re-reviewed the applicant's case as required by Public Law 95-126, determined not to affirm the recharacterization of his discharge.  The ADRB determined the applicant's discharge was proper and equitable.  In review of his record, the ADRB was persuaded in their determination by one Article 15, one summary court-martial, and 721 days of lost time.  The ADRB noted the applicant had a good Vietnam tour of duty and the Combat Infantryman Badge; however, on balance, they believed that the acts of indiscipline outweighed any other factors.  Therefore, they concluded that affirmation was not appropriate.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, 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.

12.  The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria:  wounded in action, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia, completed alternate service, received an honorable discharge from a previous tour of military service, or completed alternate service or excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area, discharge based on a violent act of misconduct, discharge based on cowardice or misbehavior before the enemy, or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.  

13.  Public Law 95-126 provided for a "Relook Program."  All cases upgraded from under other than honorable conditions under the SDRP or Presidential Proclamation programs (and their extensions) required a second review and affirmation (or not) under uniform standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants affirmation of his general discharge for entitlement to VA benefits.  However, a discharge is not changed for the purpose of obtaining VA benefits.  Each request is individually considered based on the evidence presented.

2.  His undesirable discharge was upgraded to general under honorable conditions as a result of the SDRP review on in May 1977.  In 1979, the general discharge was not affirmed by the ADRB in accordance with Public Law 95-126.

3.  In the absence of evidence to the contrary, it is presumed his voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations and that the type of discharge directed and the reasons for separation were therefore appropriate.

4.  His record of service included one NJP, one summary court-martial conviction, and 721 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is insufficient basis to affirm his general discharge.

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 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)                                         AR20140000358



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ABCMR Record of Proceedings (cont)                                         AR20140000358



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