PROCEEDINGS

	IN THE CASE OF:  .

	BOARD DATE:           29 July l999                  
	DOCKET NUMBER:   AR1999023024

	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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.
44
2.  The applicant requests, in effect, validation by this Board of the affirmed upgrade of his undesirable discharge (UD) to a general discharge GD), under honorable conditions, accomplished by the Army Discharge Review Board (ADRB) on 8 September 1978.

3.  The applicant states that he received a DD Form 215 (Correction to DD Form 2l4 (Report of Separation from Active Duty) showing an upgrade of his discharge but he never received a DD Form 2l4 showing this upgrade.  He submits copies of the two documents in question.

4.  The applicant’s military records show that he had 37 months service in the National Guard from 5 February 1963-March 3, 1966 as a clerk (military occupational specialty (MOS) 71B).  He was inducted for 2 years on 14 May 1969.  He completed basic combat and advanced individual training and was assigned to duties again in MOS 71B.  He was reported for duties in the Republic of Vietnam on 2 December 1969.  The highest rank he attained was private first class, pay grade E-3.  He received two nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 2 July 1969 for disobeying a command and on 21 January 1970 for failure to repair and misappropriation of a government vehicle.  His punishments included forfeitures of pay and extra duty.  

5.  On 17 April 1970, he was convicted by a special court-martial of being absent without leave for 1 day from 31 January-1 February 1970; for two instances of failure to repair on 25 and 26 February 1970; for possession of one ounce, more or less of marijuana and two switch blade knives with blades longer than three inches on 1 February 1970; for disrespectful language to an NCO on 
5 February 1970; for disobeying a lawful on 5 February 1970; and for by being in an off-limits area on 16 March 1970.  His approved sentence included reduction to pay grade E-1, confinement at hard labor for 6 months and forfeiture of $42 pay per month for 6 months.  He was reassigned from the RVN to Okinawa to serve his period of confinement (he served for 150 days) from 19 May through 
15 September 1970, when he was reassigned back to the RVN, to a new unit.

6.  On 4 January 1971, he was admitted to a hospital in the RVN for a serious viral infection.  He was medically evacuated through Japan, and then, enroute to the United States, he was removed from the plane in Hawaii due to congestive heart failure.  He remained there for 5 days and recovered sufficiently to be further medically evacuated to Letterman General Hospital in San Francisco.  On 
8 March 1971, he had the aortic valve replaced in his heart due to the damage done by the infection.  A line of duty determination was made on 19 March 1971, which found that his viral infection, for which he was admitted to the hospital on 
4 January 1971, was not in line of duty-due to own misconduct (LOD-No), specifically due to abuse of illegal drugs.  
7.  On 13 April 1971, the applicant was placed on convalescent leave.  While on leave, he was arrested by civilian authorities for robbery.  He was convicted, sentenced to 5 years probation and was returned to military control on 11 June 1971.  

8.  In the meantime, on 13 May 1971, his case was presented to a medical board, and he was found medically unfit to continue active duty and his case was to be referred to a Physical Evaluation Board (PEBD).  

9.  On 13 September 1971, he was observed by another individual to be injecting himself with a hypodermic needle and syringe.  He was arrested and after a search,  drug paraphernalia and suspected dangerous drugs were found.  

10.  A determination was made by the general court-martial (GCM) authority on 
17 November 1971, that he would be processed for separation through administrative channels, not medical channels.

11.  He was recommended for separation under the provisions of Army Regulation 635-212 for unfitness-frequent incidents of a discreditable nature with civilian or military authorities.  He was advised that he could receive a UD.  He requested a hearing before a board of officers, where he appeared with counsel on 17 December 1971.  The board recommended separation with a UD for unfitness, which was approved by the GCM authority.

12.  On 11 January 1972, he was discharged with UD, under the provisions of Army Regulation 635-212, by reason of unfitness.  He was credited with 
8 months and l7 days active service and 345 days lost time (1 day AWOL,
150 days military confinement, 44 days civil confinement and 129 days lost time due to the LOD-No finding).  However no credit was given for his prior period of service in the USAR on his DD Form 214. 

13.  On some date in 1972, the applicant appealed to this Board to have his discharge changed to a medical discharge.  His request was denied due to his LOD status and the recommendation of the U. S. Army Physical Disability Agency.  

14.  On 21 June 1977, the ADRB upgraded his UD to a GD under the provisions of the Department of Defense Special Discharge Review Program (DOD-SDRP).

15.  On 20 June 1978, the applicant appeared before a travel panel of the ADRB, with counsel.  The ADRB affirmed the applicant’s upgrade to GD under current standards, in accordance with the provisions of Public Law 95-126.  The Board found that he had a long-term drug abuse and addiction problem for which a majority (4 out of 5 voting officers) found mitigating.  The majority also found that the applicant’s post service conduct during which he overcame his drug addiction and was then a successful portrait artist.  

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

17.  On 4 April 1977, the Department of Defense (DOD) directed each armed service to conduct a review of discharges of former service members who were discharged between 4 August 1964 and 28 March 1973, later expanded until 1977, with an undesirable to a general discharge.  This program was entitled the DOD Discharge Review Program (Special) or SDRP.  Upgrade of such discharges to either a general or an honorable level was mandated, if the former service member met one of certain criteria, to include:  for being wounded in combat in Vietnam, for receiving a military decoration other than a service medal, for successful completion of a normal tour in Southeast Asia, for receiving an honorable discharge from a previous tour of service and for certain other criteria. On 8 October 1979, Public Law 95-126, was enacted.  It denied veteran benefits, administered by the Veterans Administration, to any former service member who was AWOL for more than 180 consecutive days, who was classified as a deserter or who was classified as a conscientious objector.  In addition, the law required the DOD to establish historically consistent, uniform standards for all discharge reviews.  The DOD was required to review all discharges previously upgraded under the SDRP, and certain other programs, utilizing these uniform standards.  This review would establish the former service member’s right to request that the VA grant favorable action on a request for veteran benefits.  If the upgrade of a favorable SDRP was not affirmed under uniform standards, the former service member would not be entitled to most VA benefits, unless he or she was otherwise entitled.  However, the upgraded discharge under the 
DOD-SDRP would stand for other reference purposes.  

18.  The Board has been advised in similar cases that the Department of Veteran Affairs (DVA) often requires validation of affirmation of SDRP upgrades by the military service correction boards in order to entitle the service member to VA benefits.  

CONCLUSIONS:

1.  The Board notes the applicant’s less then satisfactory record of service while on active duty.  However, the Board also notes that the applicant had a severe drug abuse/addiction problem.  Further, there is no evidence that he ever received any help or treatment, either medical or psychological, from the Army in dealing with his problem.  Therefore, the Board concludes that the lack of proper drug abuse treatment in this case seriously reduced the applicant’s ability to service satisfactorily while on active duty.  

2.  The Board also notes the affirmation of the SDRP upgrade under current standards, which was in accordance with Public Law 95-126, by a travel panel of the ADRB in September 1978.  This Board elects to defer to the judgement of those military officers before whom the applicant personally appeared and pled his case.  

3.  However, the Board is not convinced that further relief is warranted in this case, particularly in view of his recorded indisciplines and lost time.

4.  The Board also notes that the DD Form 214 originally issued to the applicant failed to show service credit for his 37 months in the National Guard.  This service credit should be added to his DD Form 214.  

5.  In view of the foregoing, and the fact that at least one DD Form 215 has already been issued, that it would be more appropriate to issue a new DD Form 
2l4, as exception to the normal policy, to show his prior service and a summary/affirmation of upgrade actions by the ADRB and this Board.  

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing:

	a.  that the characterization of the individual’s undesirable discharge on 
11 January 1972, under the provisions of Army Regulation 635-212, by reason of unfitness, was upgrade to a general discharge, under honorable conditions, under the provisions of the SDRP by action of the ADRB on 21 June 1977, based on his application dated 27 April 1977;

b.  that the reason and authority for his discharge remained unchanged;

c.  that the ADRB conducted a review of his upgraded general discharge under the provisions of Public Law 95-126, and announced the affirmation of the upgraded action in accordance with current standards on 8 September 1978; and 

d.  that this Board affirms the ADRB action to upgrade the applicant’s discharge on 11 January 1972 to a general discharge, under honorable conditions, in accordance with Public Law 95-126, in accordance with current standards.

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

3.  That upon completion of the above actions, that a new DD Form 2l4 be issued to the applicant, as an exception to policy, showing the upgrade and affirmation  action of his discharge to a general discharge under the SDRP and Public Law 95-125, and that his service computation be recomputed to show credit for his prior active and inactive service as a member of the National Guard between February l963 and March 1966.  

BOARD VOTE:  

___SLP__  __CHL__  __CLG__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023024	
SUFFIX		
RECON		
DATE BOARDED	19990729	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19720111	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	A64.00	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	A144.00	
2.	A00.20	
3.	A01.13	
4.	A92.22	
5.	A92.35	
6.	A93.18