RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            FEBRUARY 19, 2004
	DOCKET NUMBER:   AR2003090576

	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. Deyon D. Battle		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Robert Duecaster		Member	
	Mr. Melvin H. Meyer		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, in effect, that the Board affirm the upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP).

2.  The applicant states, in effect, that his undesirable discharge was upgraded to a general discharge under the SDRP.  However, because it was not affirmed, the Department of Veterans Affairs (VA) has challenged his entitlement to veteran’s benefits.  He states that the Army has failed to recognize the disruption in his life that was caused by his military service.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice, which occurred on 16 December 1970.  The application submitted in this case is dated 22 April 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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  He was inducted into the Army in Montgomery, Alabama, on 14 November 1961.  He completed his basic combat training and on 26 February 1962, he was honorably discharged for the purpose of immediate reenlistment.  On 27 February 1962, he reenlisted in the Army for 3 years and he went on to successfully complete his training as a communications center specialist.  

4.  He was promoted to the pay grade of E-2 on 14 March 1962 and he was transferred to Germany on 8 June 1962.  On 16 February 1963, he was promoted to the pay grade of E-3.

5.  On 11 December 1963, nonjudicial punishment (NJP) was imposed against the applicant for failure to report to duty.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

6.  On 22 January 1964, he was again promoted to the pay grade of E-3 and on 29 February 1964; he reenlisted in the Army for 6 years.  On 21 August 1964, he was promoted to the pay grade of E-4 and to the temporary pay grade of E-5 on 28 March 1966.  The applicant returned to the Continental United States on 24 April 1966 and he was transferred to Vietnam on 8 December 1966.
7.  On 4 April 1968, NJP was imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay.

8.  The applicant maintained excellent conduct and efficiency ratings until 25 July 1968, when he was transferred from Vietnam to Germany.  

9.  On 24 April 1969, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 5 September 1968 until 7 March 1969.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

10.  The applicant went AWOL on 4 October 1969 and he remained absent until 8 June 1970.

11.  Charges were preferred against the applicant on 23 November 1970, for being AWOL from 4 October 1969 until 8 June 1970 and from 16 September until 1 November 1970.  

12.  After consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

13.  The appropriate authority approved the request for discharge on 12 December 1970.  Accordingly, on 16 December 1970, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed approximately 9 years, 6 months and 13 days of total active service and he had approximately 673 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

14.  On 7 March 1973, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge from undesirable to honorable.  The ADRB denied his request for an upgrade of his discharge on 30 October 1973.

15.  On 23 May 1977, the ADRB reviewed the applicant's discharge under the SDRP and voted to upgrade his undesirable discharge to a general discharge.

16.  On 7 November 1978, the ADRB dispatched a letter to the applicant informing him that while his discharge had been upgraded to a general discharge under the SDRP, the ADRB had not affirmed his discharge.  He was also informed that he could apply to that board to have his discharge affirmed in order that he may qualify for benefits administered by the Veteran Administration (VA).

17.  Department of Defense SDRP, 5 April 1977, provided for the review of Vietnam era less than honorable discharges in the spirit of compassion.  Compelling reasons for upgrade under the primary criteria were the award of a decoration or service medal, wounded in action, satisfactory completion of a tour of duty in Southeast Asia, receipt of a prior honorable discharge, or completion of satisfactory service of 24 months prior to discharge.  Reasons for granting an upgrade under secondary criteria included age, aptitude, education level, alcohol/drug problem, record of good citizenship, etc.

18.  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 was 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.

19.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the facts of the case.

3.  The applicant's contentions have been noted; however, his record of service, to include an excessive amount of lost time and disciplinary record, does not warrant affirming his discharge as upgraded under the SDRP.

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 November 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 November 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

rjw_____  mm______  ryd_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		___Raymond J. Wagner___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090576	
SUFFIX		
RECON		
DATE BOARDED	20040219	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19701216	
DISCHARGE AUTHORITY	AR 635-200, CH 10	
DISCHARGE REASON	689/ FTGTS IN LIEU OF TRIAL BY CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  954	144.0020/A00.20	
2.		
3.		
4.		
5.		
6.