RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 February 2003                   
	DOCKET NUMBER:   AR2003088460

	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. Paul Wright		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Ms. Linda M. Barker		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests a correction of his discharge so that it no longer acts as a bar to Veterans Administration (VA) (now Department of Veterans Affairs, or DVA) benefits.  In effect, he is asking that his lost time be removed from his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states his combat service and other meritorious service, when balanced against his AWOL (absent without leave) time, shows he fully earned his VA benefits.  He provides a brief statement regarding the circumstances of his AWOL and acknowledges he had a previous upgrade of his discharge.

3.  The applicant provides an undated written statement, a copy of his DD Form 214, and a copy of a DD Form 215 (Correction of DD Form 214, Report of Separation from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the Board grant the applicant's request to upgrade his discharge to honorable (sic).

2.  Counsel states that they concur with the applicant's contentions.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 8 December 1978.  The application submitted in this case is dated 19 February 2003.

2.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

3.  On 28 March 1967, the applicant enlisted in the Regular Army (RA) for a period of 3 years.  He successfully completed basic combat training and advanced individual training (AIT).  Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 11B10, Infantryman.  He then completed basic airborne training and was awarded MOS 11B2P, Airborne Infantryman.

4.  Upon completion of airborne training, the applicant was assigned to Company D, 2nd Battalion, 506th Infantry (Airborne), Fort Campbell, Kentucky.  The applicant, with his unit, was then deployed to the Republic of Vietnam.  Upon his return from the Republic of Vietnam, the applicant was assigned to Company C, 2nd Battalion, 504th Infantry, Fort Bragg, North Carolina.

5.  On 14 March 1969, the applicant was convicted by a Special Court-Martial of being AWOL 8-22 January 1969 and 12-26 February 1969.  His sentence included reduction to pay grade E-1 and confinement at hard labor 3 months.  The sentence was modified to reduction to pay grade E-1, extra duty for 45 days, restriction for 45 days, with that portion pertaining to confinement at hard labor suspended for 3 months.

6.  On 10 September 1969, the applicant was convicted by a Special Court-Martial of being AWOL 7 July through 22 August 1969.  His sentence included restriction for 60 days and forfeiture of $109.00 per month for 4 months.

7.  On 8 October 1969, the applicant was convicted by a Special Court-Martial of committing an assault with a deadly weapon upon another enlisted man.  The sentence included confinement at hard labor for 5 months and forfeiture of $75.00 per month for 5 months.  On 6 November 1969, the sentence was suspended for 5 months.

8.  On 1 December 1970, charges were preferred against the applicant for being AWOL 30 December 1969 through 21 October 1970.

9.  On 31 December 1970, after consulting with counsel, the applicant requested separation under the provisions of chapter 10, Army Regulation (AR) 635-200.  He declined to submit a statement in his behalf.  His commander and the intermediate commander recommended approval with issuance of an Undesirable Discharge Certificate.

10.  On 10 February 1971, the General Court-Martial convening authority approved the request and directed separation with an Undesirable Discharge Certificate.

11.  On 19 February 1971, the applicant was separated with an Undesirable Discharge.  He had 2 years, 5 months, and 22 days of creditable active Federal service.  He had 510 days of lost time.  His DD Form 214 shows he had awards of the National Defense Service Medal, Combat Infantryman Badge, Army Commendation Medal, Vietnam Service Medal with 3 Bronze Service Stars, Vietnam Campaign Medal with Device 60, and the Parachutist Badge.  His awards of the Air Medal and Army Commendation Medal with V Device (First Oak Leaf Cluster) are not shown. 

12.  The ADRB considered the applicant's case and upgraded his discharge to General – Under Honorable Conditions on 21 June 1977 under the provisions of the Department of Defense (DOD) Discharge Review Program (Special).  The ADRB considered the applicant's case again on 20 June 1978 and affirmed its prior decision of 21 June 1977.  Subsequently, the ADRB reviewed the case again on 8 December 1978 and assigned new index numbers in compliance with DOD instructions.

13.  The Special Discharge Review Board Program (SDRP), often referred to as the "Carter Program”, was announced on 29 March 1977.  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.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  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: 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 PP 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.  

14.  Public Law 95-126, enacted on 8 October 1977, provided in general that no VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD Special Discharge Review Program.  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.

15.  Department of Defense Financial Management Regulation, volume 7A, paragraph 010202C states that enlisted members must make up any lost time.  The regulation states that the time a member is held in a non-duty status while awaiting trial, as well as the time during trial, does not count towards making up lost time and is not creditable.  Table 3-3 of the regulation further states that when a member is confined by civil authorities and the charges are dismissed and it is clear that arrest and detention were not due to a member’s misconduct, then the absence may be excused as unavoidable.

16.  Army Regulation 630-10 (Absence Without Leave and Desertion) provides commanders with the authority to reclassify AWOL to an authorized absence or to excuse unauthorized absence as unavoidable.  The regulation states that the Army and service members are responsible for avoiding unauthorized absences and that if either the Army or the service member fails to take proper action to avoid an absence, then it may not be excused as unavoidable.  As a result, the regulation also requires that before an unauthorized absence may be excused as unavoidable, it must be determined that the absence was not caused by the member’s misconduct, the member acted as prudently and responsibly as could be expected to avoid the absence, and representatives of the Army acted as prudently and responsibly as could be expected to avoid the absence.

DISCUSSION AND CONCLUSIONS:

1.  A further upgrade of the applicant's discharge is not warranted.  His period of excellent service along with his awards were previously considered by the ADRB when that Board upgraded his Undesirable Discharge to General – Under Honorable Conditions.  A further upgrade to an Honorable Discharge is not warranted and will not erase the cause of his being barred from DVA benefits.  His large amount of lost time is the basis for the DVA to bar benefits.

2.  The Board is cognizant of the applicant's excellent Vietnam service as evidenced by his conduct and efficiency ratings and his awards for valor.  Additionally, the Board notes that some of these awards are missing on his DD Form 214.  Since the applicant has not requested a correction regarding his missing awards, the Board will not address that issue.  The applicant may reapply to the Board, if he desires a correction pertaining to his authorized awards.

3.  The Board is not authorized to remove lost time from an applicant's official record or his DD Form 214.  To do so would be in violation of law.  The applicant had an opportunity to make up the lost time had he not requested discharge.  Had he made up the lost time he would not find himself with a denial of DVA benefits.  Additionally, the ABCMR does not upgrade/correct discharges for the purposes of establishing eligibility for DVA benefits.

4.  Eligibility for veteran's benefits does not fall within the purview of the ABCMR. Accordingly, the applicant should contact the DVA Regional Office for further assistance.  The DVA has procedures for appealing any previous denials of benefits.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 8 December 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 December 1981. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jns___  __rtd___  __lmb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088460	
SUFFIX		
RECON		
DATE BOARDED	20040210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.0000	
2.	123.0100	
3.	123.0700	
4.		
5.		
6.