PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           14 September 2000                  
	DOCKET NUMBER:   AR2000040570

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

	Mr. Carl W. S. Chun		Director	
	Mr. Gerald E. Vandenberg		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr.Elzey J. Arledge, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his application to correct his records by granting him an upgrade of his discharge.

3.  The applicant states he has tried several times to have his final period of service upgraded.  He states that as a result of a bad joke being played on him, he resorted to the acts that resulted in his less than honorable discharge.  He states that he is old and in poor health and would like to have the upgrade so that when he dies he can have a military funeral.

4.  The Memorandum of Consideration reflecting the Board’s 7 October 1999 review of the applicant’s request is incorporated herein by reference as if wholly set forth.

5.  The applicant submits copies of informational material relating to the application of the “Laird Memorandum”.  It is inferred by submission of this material that the applicant wishes the Board to review his case under this memorandum. 

6.  The request for the application of the Laird Memorandum criteria is new argument that requires Board review.

7.  The applicant’s military records show that he enlisted in the Regular Army   on 8 July 1964.  He completed basic combat training and advanced individual training and was awarded MOS 293.10 (Radio Relay Operator).  He was awarded the expert qualification badge, rifle M-1; the marksman qualification badge, rifle M-14; the marksman qualification badge pistol .45 caliber; and the expert qualification badge, rifle M-16.  He reenlisted on 24 September 1965 and 24 September 1969.

8.  The applicant accepted non-judicial punishment (NJP) on seven occasions during his military career including three times during his last period of enlistment.

9.  The applicant served three tours in Vietnam with assignment in ten different signal units for varying periods.  His Personnel Qualification Record 
(DA Form 2-1) shows his conduct and efficiency were rated as “fair” during one unit assignment; as “good” and “excellent,” respectively, during another unit assignment; and as “satisfactory” during another unit assignment.  He is credited with serving during nine campaigns.

10.  The applicant’s DA Form 2-1 shows that, following his last Vietnam tour, he was a patient at Letterman Hospital for several weeks.

11.  Court-martial charges were preferred against the applicant for wrongfully having in his possession one ounce, more or less, of heroin.
12.  On 28 July 1972, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions (UOTHC) and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf. 

13.  The battalion commander noted in his endorsement to the AR 635-200 chapter 10 request that the applicant had been treated by Darnell Army Hospital for drug abuse and had failed in his attempts toward rehabilitation.

14.  On 14 August 1972, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.  On 30 August 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 with an UOTHC discharge.

15.  On 7 October 1999 a prior panel of this Board corrected the applicant’s records by:

a.  amending the applicant’s DD Form 214 for the period ending 30 August 1972 to show he was awarded the National Defense Service Medal, the Vietnam Service Medal with one silver and four bronze service stars, the Republic of Vietnam Campaign Medal, the Meritorious Unit Citation with 3 oak leaf clusters, the expert qualification badge rifle M-1, the marksman qualification badge rifle M-14, the marksman qualification badge pistol .45 caliber, and the expert qualification badge rifle M-16; and,

b.  showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 24 September 1965.

16.  Department of Defense Memoranda of 7 July and 13 August 1971, the latter commonly known as the Laird Memorandum, applied to administrative UOTHC discharges for personnel separated prior to 7 July 1971.  Discharges issued solely on the basis of personal use of drugs, or possession of drugs for the purpose of such use, were to be reviewed for recharacterization.  Under this policy, each Secretary of a military department was authorized to issue a discharge under honorable conditions upon establishment of facts consistent with this policy.  In actual practice, the policy virtually required such upgrading.

17.  During the current review of this case it was noted that the applicant met the requirements for review under the program known as the Department of Defense (DOD) Discharge Review Program (Special) (SDRP).  The applicant’s discharge has been reviewed under this program.  The Board therefore deems it appropriate to do so.
18.  On 4 April 1977 the 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, been wounded in action, been awarded a military decoration other than a service medal, 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.

19.  On 8 October 1978, Public Law (PL) 95-126 was enacted.  This law provided generally, that no VA benefits could be granted based on any discharge upgraded under either the Ford Memorandum of 19 January 1977, or the DOD SDRP.  It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases.  The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.  

20.  Army Regulation (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 of that regulation sets forth the standards and provisions for the characterization of a soldier’s period of service.  In pertinent part, section 3-7 states that an honorable discharge is warranted when the quality of a soldier’s service has met the standards of acceptable conduct and performance of duty.  A general discharge under honorable conditions is warranted when a soldier’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

21.  AR 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 and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge Under Other Than Honorable Conditions is normally considered appropriate.

CONCLUSIONS:

1.  The applicant’s 30 August 1972 discharge occurred after the 7 July 1971 cutoff date set forth in the Laird Memoranda.  Therefore, those provisions can not be applied to his case. 

2.  The Army should have reviewed the applicant’s discharge under the SDRP. 

3.  The Board concludes that had this case been reviewed by the SDRP it would have resulted in, at least, an upgrade to a general discharge under honorable conditions under the provisions of the SDRP.  Further, the case would have been referred under PL 95-126 and the upgrade would have probably been affirmed based upon the applicant’s two prior honorable discharges and three tours in Vietnam.  It is therefore, appropriate to afford him relief consistent with the SDRP and PL 95-176 review programs.

4.  In determining the appropriate characterization, the Board weighed the applicant’s three NJPs, his fluctuant conduct and efficiency ratings, and his inservice drug rehabilitation failure.  It is concluded that these factors show that the applicant did not meet the accepted standards for conduct and performance of duty for an honorable discharge under AR 635-200, paragraph 3-7.  Therefore, a general discharge under honorable conditions would appropriately characterize his last period of service.

5.  His discharge should be changed to general under honorable conditions and that the reason and authority remain unchanged. 

6.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error and rectify an injustice.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected;

a.  by voiding the 24 September 1972 discharge under other than honorable conditions; and,

b.  by showing that the applicant received a general under honorable conditions discharge on 24 September 1972. 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

_CVO___  __MVP__  ___EJA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O'Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID	AR2000040570	
SUFFIX		
RECON	 	
DATE BOARDED	200000914 	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	110.02	
3.	144.9318	
4.		
5.		
6.