IN THE CASE OF:  	  

		BOARD DATE:  30 September 2014	  

		DOCKET NUMBER:  AR20140001033 


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, in effect:

* he wants the Board to honor the pardon by President Ford
* he has overcome his troubled past
* his lifestyle has changed over the years
* he wants Department of Veterans Affairs (VA) benefits
* his original discharge was not given by judicial sentencing
* he was unaware of the consequences without counsel
* he was confined for 90 days for being absent without leave (AWOL)
* upon his release from confinement, discharge paperwork was thrust at him without proper counsel instead of reassignment
* he served his sentence
* he has worked at a VA hospital for more than 10 years

3.  The applicant provides no additional evidence.

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 30 November 1968 for a period of 2 years.  He completed his training and was awarded military occupational specialty 11C (infantry indirect fire crewman).

3.  Between May 1969 and November 1970, nonjudicial punishment (NJP) was imposed against him on five occasions for:

* disobeying a lawful order
* being AWOL from 10 June 1969 to 16 June 1969
* being AWOL from 17 June 1969 to 11 July 1969
* failing to repair
* being AWOL for 1 hour

4.  On 5 November 1969, he was convicted by a special court-martial of two specifications of assault.  He was sentenced to forfeiture of $35.00 pay per month for 2 months.  On 5 March 1970, the convening authority approved the sentence.

5.  On 1 May 1970, he was convicted by a special court-martial of carrying a concealed weapon and being AWOL from 13 February 1970 to 2 March 1970.  He was sentenced to confinement at hard labor for 4 months and 3 days, forfeiture of $50.00 pay per month for 6 months, and reduction to E-1.  On 2 June 1970, the convening authority approved the sentence.

6.  On 22 February 1971, his unit commander initiated action to separate him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The basis for the proposed discharge was his shirking and failure to adapt to Army life as evidenced by his repeated AWOL and his unwillingness to accept responsibilities and dealing with authority.

7.  On 5 March 1971, he was convicted by a special court-martial of being AWOL from 3 December 1970 to 28 January 1971.  He was sentenced to confinement at hard labor for 4 months and forfeiture of $95.00 pay per month for 6 months.  On 26 March 1971, the convening authority approved the sentence.

8.  On 25 July 1971 after consulting with counsel and being advised of his recommended separation for unfitness, he waived consideration of his case by a board of officers and representation by counsel.  He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable condition were issued to him.  He further acknowledged he understood that as the result of issuance of an undesirable discharge under other than honorable conditions, he might be ineligible for any or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf.

9.  On 9 April 1971, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.

10.  On 16 April 1971, he was discharged for unfitness under the provisions of Army Regulation 635-212.  He completed 1 year, 6 months, and 19 days of total active service with 299 days of lost time.  The separation program number (SPN) 386 shown on his DD Form 214 represents an established pattern for shirking.

11.  On 1 June 1977, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to general under honorable conditions under the provisions of the SDRP.

12.  In April 1978, 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 his discharge was proper.  In review of his record, the ADRB noted his service, after he completed his training where he received excellent ratings, was marked by uniformly unsatisfactory service in several different units and under different conditions; he was cited with five Article 15's and three special courts-martial.  The ADRB found no explanation in the file for his behavior and found no matters that would serve to mitigate his unsatisfactory duty performance and disciplinary record.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability and unfitness.  Paragraph 6a(4) provided that members involved in an established pattern of shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown under the Carter administration 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:  were 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 therefrom 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.

15.  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 contends he has overcome his troubled past and his lifestyle has changed over the years.  However, good post-service conduct alone is not a basis for changing a service characterization.

2.  Although he implies he did not receive proper counsel prior to his discharge, the evidence shows he consulted with counsel on 25 July 1971.

3.  The applicant requests affirmation of his general discharge for entitlement to VA benefits.  However, a discharge is not changed for the sole purpose of qualifying an applicant for VA benefits.  Each request is individually considered based on the evidence presented.

4.  His undesirable discharge was upgraded to general under honorable conditions as a result of the SDRP review in June 1977.  In 1978, his general discharge was not affirmed by the ADRB in accordance with Public Law 95-126.

5.  His record of service included five NJP's, three special court-martial convictions, and 299 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 and 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 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)                                         AR20140001033



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ABCMR Record of Proceedings (cont)                                         AR20140001033



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