IN THE CASE OF:  	  

		BOARD DATE:  24 September 2015	  

		DOCKET NUMBER:  AR20150001770 


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 an upgrade of his discharge.  In effect, he requests that his upgraded discharge be affirmed under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so he may obtain Department of Veterans Affairs (VA) benefits.  He also requests a personal hearing.

2.  The applicant states:

* his first discharge in November 1964 was an honorable discharge; he then reenlisted for 6 years
* his second discharge was in 1968 and it was an under other than honorable conditions discharge
* in May 1977, the SDRP upgraded his discharge to general, under honorable conditions
* the upgraded discharge still denied him certain veterans benefits; he feels this should be changed because he served his country for over 5 years and during wartime
* he served in Germany and he also served 13 months in Vietnam where he saw many Soldiers being killed
* when he returned to the United States his life and thinking were different because of the Vietnam War
* there were many times he did not return to base but he meant no harm to anyone; he was depressed and did not understand what was going on around him; he believes he had a mental disorder
* he was given an under other than honorable conditions discharge and after he left the Army, he worked in odd jobs but was never in prison
* he has a clean record and in 1998 he was put into the social security system; the war affected him
* he is 74 years old now and in bad health (heart disease, cancer, and chronic obstructive pulmonary disease (COPD)) 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 26 November 1964
* Reissued DD Form 214 (Report of Separation from Active Duty), ending on 25 September 1968
* General Discharge Certificate
* Two medical statements 

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's service records are not available for review with this case.  However, he provides sufficient documents for the Board to conduct a fair and impartial evaluation of his case.  

3.  His first DD Form 214 shows he was inducted into the Army of the United States on 21 November 1963.  He was honorably discharged on 26 November 1964 for the purpose of immediate reenlistment.  This form also shows at the time of his discharge:

* he held military occupational specialty 111.00 (Light Weapons Infantryman) and he was assigned to 1st Battalion, 19th Infantry Regiment, Germany
* he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* he held the rank/grade of private first class/E-3 and completed 1 year and 6 days of active service 

4.  His second/reissued DD Form 214 shows he enlisted in the Regular Army on 27 November 1964.  He was discharged on 25 September 1968 with an under other than honorable conditions characterization of service.  This form shows:

* he held military occupational specialty 11D (Armor Intelligence Specialist) and he was assigned to the U.S. Army Special Processing Detachment at Fort Knox, KY
* he was discharged in the rank/grade of private/E-1 and completed
3 years, 3 months, and 3 days of active service with 206 days of lost time
* his lost time was 2 March 1965, 5 July to 2 August 1966, 15 January to 6 February 1968, 20 March to 6 May 1968, 10 to 11 June 1968, and 14 June to 24 September 1968 
* his characterization of service was upgraded under the DOD SDRP on 27 May 1977 to under honorable conditions (general); however, the reason/authority for the discharge is not indicated 

5.  He provides: 

	a.  A medical statement, dated 23 September 2014, from Dr. KZF who states the applicant was seen in his office on 15 May 2014 and he was treated for chronic coronary artery disease and COPD.   

	b.  A medical statement, dated 21 October 2014, from Dr. DM who states she had been seeing the applicant for the past 3 years and that he suffers from severe COPD, which with other health issues makes his prognosis poor.  

6.  Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), then in effect, set forth the policy for administrative separation for unfitness.  It stated, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking; and/or e)  an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or honorable discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

8.  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.

9.  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.

10.  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.
11.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, he provides a DD Form 214 that shows he was discharged on 25 September 1968, initially with an under other than honorable conditions discharge, but later upgraded by the ADRB to a general discharge. 

2.  His DD Form 214 does not show the authority and narrative reason for separation.  However, given his lost time, it is most likely he was discharged under the provisions of chapter 10, Army Regulation 625-200 in lieu of trial by a court-martial or under the provisions of Army Regulation 635-212 by reason of unfitness.  Either way, in the absence of additional evidence, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

3.  It appears after a review of his case, the ADRB decided to upgrade his discharge to a general discharge in May 1977.  It also appears after the ADRB upgraded his discharge to a general, the ADRB reviewed his discharge as required by Public Law 95-126.  As a result of this review, the ADRB determined that the applicant did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD-SDRP was not affirmed.  This did not change the upgraded discharge he previously received, but because of the new law, he would not be able to use his discharge to qualify for VA benefits. 

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Based on his lost time, his service does not appear to have met the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.   In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable discharge or affirming the upgraded general discharge previously directed by the ADRB.
5.  His request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20150001770



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ABCMR Record of Proceedings (cont)                                         AR20150001770



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