IN THE CASE OF: . BOARD DATE: 21 JULY 2009 DOCKET NUMBER: AR20090004557 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (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) so he may obtain medical care at Department of Veterans Affairs (VA) hospitals. 2. The applicant states that he did not go on an unauthorized leave for 336 days as indicated on his separation document and that his discharge is now under honorable conditions; however, the authority for separation is preventing him from getting VA services. He believes that his service in Vietnam has earned him this right. 3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty); a copy of his Under Honorable Conditions Discharge Certificate, dated 17 September 1971; and pages 3 and 4 of his DA Form 20 (Enlisted Qualification Record) in support of his request. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant’s records show he enlisted in the Regular Army for a period of 3 years on 19 November 1968. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic) and also 63C (Track Vehicle Repairman). The highest rank/grade he attained during his military service was private first class (PFC)/E-3. 3. On 21 September 1969, the applicant was arrested by civil authorities in Jonesboro, GA, for the civilian charges of “theft by taking” and for violation of a Minimum Custody Agreement. He was subsequently placed in civilian confinement on 3 October 1969. He was released to Military Police custody at Fort McPherson, GA, on 10 December 1969. 4. On 12 January 1970, the applicant pled guilty at a Special Court-Martial to two specifications of being absent without leave (AWOL) during the periods on or about 28 May to 15 August 1969 and from on or about 5 September to 10 December 1969. The Court sentenced him to confinement at hard labor for 4 months, a forfeiture of $82.00 pay per month for 4 months, and a reduction to private (PVT)/E-1. The sentence was adjudged on 12 January 1970 and approved on 15 January 1970. 5. On 26 March 1970, the applicant was again arrested by civil authorities in Jonesborough, GA for the civilian charge of theft of a motor vehicle. The charge was subsequently reduced to criminal trespassing and he was ultimately sentenced to 12 months probation which was later suspended. He was released to military authorities on 9 April 1970. 6. On 12 January 1971, the applicant was arrested a third time by civil authorities in Atlanta, GA, for the civilian charge of creating turmoil and violating a beer and wine ordinance. The disposition of these charges is not available for review with this case. 7. On 8 February 1971, the applicant pled guilty at a Summary Court-Martial to one specification of being AWOL during the period on or about 14 January 1971 to 8 February 1971. The Court sentenced him to a forfeiture of $56.00 pay for 1 month and a reduction to PVT/E-1. The sentence was adjudged on 8 February 1971 and approved on 10 February 1971. 8. The applicant's records further show he served in the Republic of Vietnam from on or about 16 February to 14 September 1971. His DD Form 214 shows his awards as the Vietnam Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14). His DA Form 20 also shows he was authorized the National Defense Service Medal. 9. On 19 July 1971, court-martial charges were preferred against the applicant for being found sleeping on his post as a sentinel at Cam Ranh Bay, Vietnam, on or about 7 July 1971. 10. On 5 August 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an under other than honorable conditions discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200. 11. In his request for discharge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or an under other than honorable conditions discharge. He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 12. On 30 August 1971, the applicant's immediate commander recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge. He further remarked that the applicant had a "total of 336 days of bad time remaining" which caused his negative attitude towards the Army and his job performance. He added that the applicant had been constantly late for formation, was found asleep on his job, and generally expressed no interest in doing his job right. In addition, his conduct and efficiency ratings were unsatisfactory. 13. On 2 September 1971, the applicant’s intermediate and senior commanders recommended approval of the applicant’s discharge. 14. On 15 September 1971, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he receive an Undesirable Discharge Certificate and reduction to the lowest enlisted grade. Accordingly, the applicant was discharged on 17 September 1971. The DD Form 214 he was issued at the time shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions. He had completed a total of 1 year, 10 months, and 23 days of creditable active service and had 336 days of lost time due to being AWOL and/or in military or civil confinement. 15. The applicant's DD Form 214 shows his lost time includes the periods 5 September 1969 through 9 December 1969 (96 days), 10 December 1969 through 27 January 1970 (49 days), 28 January 1970 through 22 March 1970 (54 days), and 23 March 1970 through 12 April 1970 (20 days), for a total of 220 days continuous unauthorized absence. His records indicate these periods of unauthorized absence consisted of absence without leave, confined civil authorities, and/or confined military authorities. 16. On 14 March 1975, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge. 17. On 16 March 1978, the ADRB considered the applicant’s request under the DOD SDRP and directed the applicant’s under other than honorable conditions discharge be upgraded to a general discharge under honorable conditions. Accordingly, the applicant was reissued a DD Form 214 that shows he was discharged under honorable conditions, effective 17 September 1971. 18. On 1 February 1979, the ADRB re-reviewed the applicant’s discharge as required by Public Law 95-126. As a result of this review, the Board determined the applicant did not qualify for an upgrade under the new uniform standards for discharge review. Accordingly, his upgraded discharge under the DOD-SDRP was not affirmed. This did not change the upgraded discharge he previously received; but, because of the new law, he would not be able to use his discharge to qualify for VA benefits. 19. Army Regulation 635-200 sets forth the policy for administrative 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 trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate. At the time, an undesirable discharge was normally issued. 20. 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, 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. 21. 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 were 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. 22. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits. Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures. 23. The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service correction boards in order to entitle the service member to VA benefits. DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, the Board should affirm his upgraded discharge under the DOD SDRP so that he may qualify for VA medical care. 2. The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 3. The available evidence clearly shows the applicant had a disciplinary record, to include two instances of courts-martial, multiple instances of being AWOL, and multiple instances of arrests and/or conviction by civil authorities. He clearly exhibited a total disregard for military and civil authorities. 4. After review of the applicant’s case, the ADRB decided 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 that would tend to jeopardize his rights. Notwithstanding the original determination by the ADRB, the official record shows that his service was not satisfactory and that his general discharge should not be affirmed. 5. The applicant appears to be implying that the VA is denying him benefits because he was on "an unauthorized leave for 336 days," which the applicant states he was not on. The applicant had a total of 336 days of unauthorized absence, which included not only unauthorized leave (i.e., AWOL) but also his civil and military confinement. Of that total, 220 days of the unauthorized absence was continuous. If that is the reason the VA is denying him benefits, it appears that they are erroneously denying him benefits, because that unauthorized absence was not the basis for his discharge. 6. However, Public Law 95-126 also authorizes prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures. In this regard, as noted above, his period of service was not satisfactory and his general discharge should not be affirmed. 7. The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits. 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 did not submit evidence that would satisfy that requirement. Therefore, he is not entitled to the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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. _______ _ _XXX______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20090004557 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090004557 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1