MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            23 February 2000                  
	DOCKET NUMBER:   AR1999024017

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Ms. Rosa M. Chandler		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Ms. Elizabeth Buchanon 		Member	
	Mr. Raymond J. Wagner		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge. 

APPLICANT STATES:  In effect, that military personnel at Fort Stewart, Georgia, told him that he could go home, and that he would receive orders through the mail.  Therefore, he left Fort Stewart under the impression that he was being released 5-months early.  A few years later, the Federal Bureau of Investigation (FBI) came to his house and informed him that he was absent without leave (AWOL).  Additionally, he states that he served honorably in the Republic of Vietnam (RVN) and he was eligible for medical care through the Department of Veterans Affairs (DVA) from 1970-1997.  He has colon cancer, and needs the benefits that he is no longer entitled to receive. 

EVIDENCE OF RECORD:  The applicant's military records show: 

On 5 February 1968, he was inducted into the Army of the United States for a period of 2 years.  His military occupational specialty (MOS) is not a matter of record.  

On 13 September 1968, the applicant began his service in the RVN.  On 
23 January 1969, he accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice, for being absent from his appointed place of duty at the prescribed time (guard duty) on 22 January 1969.  His punishment included forfeiture of pay.

On 10 February 1969, he accepted NJP for wrongfully appropriating a 2 ½ ton M35A2 truck, property of the US Government and for being absent from his appointed place of duty, from 3-7 February 1969.  His punishment included reduction from pay grade E-3 to pay grade E-2.

On 4 June 1969, the applicant received a third NJP for being absent from his place of duty and for disobeying a lawful order to keep in his possession the required field equipment while off post on 2 June 1969.

On 8 September 1969, the applicant was reassigned to the United States.  On 
20 October 1969, he reported to Fort Stewart, Georgia for duty.  On 2 November 1969, he departed AWOL.  

On 16 August 1977, the applicant requested to participate in the DOD Special Discharge Review Program (SDRP).  On 19 September 1977, he turned himself into military authorities at the US Army Provisional Deserter Processing Center, Fort Benjamin Harrison, Indiana.  On the same date, the commander notified him that he was initiating action to separate him under the provisions of chapter 15, Army Regulation 635-200, for AWOL (Desertion).

Legal counsel advised him of his rights and that the offense for which he was charged could lead to a UD.  He authenticated a statement with his own signature in which he waived consideration of his case by a board of officers, he stated that he understood the ramifications of receiving a UD, he waived further legal counsel and he declined to submit a statement in his own behalf.

On 19 September 1977, the applicant’s commander recommended separation.  On the same date, competent authority approved the recommendation.  On 
20 September 1977, he was separated under the provisions of chapter 15, Army Regulation 635-200, for AWOL (Desertion) with a UD.  He had completed 1 year, 
8 months and 19 days of active military service and he had 101 days lost time prior to the expiration of his term of service (ETS) and a total of 2,784 days lost time after his ETS. 

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct by reason of absence without leave or desertion.

On 23 February 1978, the Army Discharge Review Board (ADRB) upgraded the applicant’s UD to a GD, under honorable conditions, under the provisions of the Special Discharge Review Program (SDRP).

Further, the Army Discharge Review Board (ADRB) Directive, dated 23 February 1978 shows that the applicant was AWOL from 3 June-18 July 1968.  The punishment is not a matter of record and the lost time is not recorded on his DD Form 214.  

On 26 September 1978, the ADRB reviewed the applicant’s discharge upgrade, under the provisions of Public Law 95-126.  The ADRB carefully examined the applicant’s record and confirmed that the command met all procedural requirements for separation processing and that the rights of the applicant were protected throughout the discharge process.  The ADRB considered the applicant’s record, his extended period of AWOL and the NJP’s that he received in the RVN and concluded that affirmation of the SDRP upgrade of 23 February 1978 was not warranted.  Therefore, the ADRB voted not to affirm the applicant’s discharge under uniform standards.

On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 
4 August 1964 and 28 March 1973.  This program entitled the DOD Discharge Review Program (Special) (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, 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.

In October 1978, Public Law 95-126 was enacted.  This legislation required that service Departments establish historically consistent, uniform standards for discharge reviews.  Previously upgraded discharges under the SDRP and other programs were reconsidered using the uniform standards.  Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  This Board concurs with the findings and conclusions of the ADRB in its decision not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  The applicant’s administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors by the ADRB which jeopardized his rights.

3.  This Board took into consideration the applicant’s contention that military personnel at Fort Stewart told him to go home.  However, there is nothing in his record to indicate that he was told that he could go home and he has submitted nothing to the contrary.  

4.  DVA benefits do not fall within the purview of this Board.  DVA policies and entitlement to DVA benefits are established within that agency.

5.  Additionally, the applicant’s RVN service was less than honorable.  He 
committed several serious offenses of misconduct, for which he received NJP’s, while assigned to a hostile environment during combat operations.

6.  Therefore, the type of discharge directed and the reason for the discharge was appropriate considering the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant’s request. 

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __eb____  ___rjw___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999024017	
SUFFIX		
RECON		
DATE BOARDED	2000223	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19770920	
DISCHARGE AUTHORITY	AR 635-200, Chapter 15	
DISCHARGE REASON	A68.01	
BOARD DECISION	(Deny)	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.