PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            2 November 2000   
	DOCKET NUMBER:   AR2000044462

	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	
	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. William D. Barr		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, in effect, that his honorable discharge (HD) under the Department of Defense (DOD) Special Discharge Review Program (SDRP) be affirmed.  

3.  The applicant states, in effect, that in June 1977 the Army Discharge Review Board (ADRB) upgraded his undesirable discharge (UD) to honorable (HD), however, the upgrade he received still bars him from receipt of veterans benefits from the Department of Veterans Affairs (VA).  In support of his request, the applicant has submitted a copy of a letter from a Member of Congress, explaining the VA’s decision to deny the applicant benefits based on an upgrade under conditions that bar him from obtaining VA benefits.

4.  The applicant’s military records show that on 23 October 1969 the applicant enlisted in the Regular Army (RA) for a period of 3 years.  At the time of enlistment he had completed the 9th grade, and attained an Armed Forces Qualification Test score of 48 (i.e., Mental Category III).  He successfully completed basic combat training at Fort Ord, California, and was assigned to Fort Gordon, Georgia, for advanced individual training (AIT) in military occupational specialty (MOS) 31M (Radio Relay and Carrier Attendant).  He was unable to complete AIT in MOS 31M, and, on 18 March 1970, he was assigned to Fort Sill, Oklahoma, for AIT in MOS 13A (Cannoneer).  Upon successful completion of AIT, he was assigned to Germany.

5.  On 27 October 1970, while in Germany, he was honorably discharged for the purpose of immediate reenlistment and for reassignment to Vietnam.  On
28 October 1970 he reenlisted in the RA for a period of 3 year.  At the time of his reenlistment he held the rank of private first class/E-3 and had completed 1 year  and 5 days of active service.  

6.  On 2 December 1970 the applicant departed Germany in casual status en route to Vietnam.

7.  The record shows the applicant served in Vietnam from 16 January 1971 to 25 December 1971.  He received the Vietnam Service Medal and participated in one unnamed campaign.

8.  On 12 June 1971 the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for driving his vehicle 37 miles per hour in a 30 mile per hour speed zone.  His punishment consisted of a reduction in grade to private/E-2, a forfeiture of $35, and 14 days restriction and extra duty.   

9.  On 22 November 1971 his commanding officer initiated action to discharge him under the provisions of AR 635-212 by reason of unfitness-frequent incidents of a discreditable nature with military authorities.  The record is void of the specific facts and circumstances leading to the commanding officer’s decision to separate the applicant from the Army.  His DA Form 20 (Enlisted Qualification Record) indicates that he was again promoted to private first class 
20 September 1971, and shows that he received no further reductions due to NJP or courts-martial.  The DA Form 20 does not show any lost time due to confinement or absence without leave (AWOL), and the DD Form 214 (Report of Separation From Active Duty) supports the absence of lost time.

10.  On 18 December 1971 the separating authority approved the applicant’s discharge under the provisions of AR 635-212 by reason of unfitness and issuance of an Undesirable Discharge Certificate, DD Form 258A.  Accordingly, he was discharged on 27 December 1971 after completing 2 years, 2 months, and 5 days of total active military service. 

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separations for unfitness.  A UD was normally considered appropriate.

12.  On 3 June 1977 the ADRB reviewed the applicant’s records under the provisions of the DOD SDRP.  On the basis of that review the ADRB upgraded the applicant’s discharge from UD to HD.  The ADRB took into consideration the applicant’s age, education level, nearly 12 months in Vietnam, prior honorable period of service, and personal problems, in determining that he merited an upgrade to his characterization of service. 

13.  The applicant was issued a DD Form 214 showing that he was honorably discharged on 27 December 1971 in the rank of private first class/E-3. 

14.  Public Law 95-126 provided in pertinent part for a “Relook Program.”  All cases upgraded from under other than honorable conditions under the DOD SDRP program had to be relooked and affirmed or not-affirmed under uniform standards.  The applicant’s file does not contain evidence of a relook for the purposes of affirmation or non-affirmation, and, in light of the fact that the applicant allegedly remains barred from VA benefits, it is likely that the ADRB did not affirm the applicant’s upgrade.  

CONCLUSIONS:

1.  The applicant’s discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation, however, in the absence of specific evidence describing the events which led to the applicant’s separation, the Board only found a single incident of misconduct which involved driving a vehicle 7 miles per hour over the speed limit.  

2.  The Board noted that the applicant was promoted after his reduction for the above incident, and that the record shows no further reductions, NJPs, court-martials, or time lost to confinement or AWOL.

3.  The Board noted that the ADRB initially reviewed the applicant’s record for upgrade under the DOD SDRP and determined that he merited an HD.  The ADRB based its decision on the applicant’s prior honorable service, his nearly 12-month tour in Vietnam, his youth, educational level, and his personal problems.

4.  In view of the foregoing, it appears that the interest of justice would be best served by changing the applicant’s honorable discharge to an honorable discharge which provides him all rights and privileges of the same. 

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the HD received by the individual concerned on
27 December 1971 is affirmed. 

2.  That the Department of the Army issue to the individual concerned a new DD Form 214 reflecting the above correction.

BOARD VOTE:  

__FNE__  __TSK __  _WDB___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000044462	
SUFFIX		
RECON		
DATE BOARDED	20001102	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19711227	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	144.3050.0000	
2.	144.9220.0000	
3.		
4.		
5.		
6.