IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150005363 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, affirmation of his general discharge under the provisions of the Special Discharge Review Program (SDRP). He also requests payment for his prior service. 2. The applicant states: a. He has been notified that his discharge was not valid for Department of Veterans Affairs (VA) compensation, but it was valid for the Department of Defense. He has been trying to get compensation for exposure to Agent Orange during his service in Vietnam. b. He reentered the service while inebriated, even though he had a bar to reenlistment from a previous enlistment. He reported this information when he sobered up, but he was ignored and sent to Vietnam. Other individuals ran to Canada or hid until the war was over and were pardoned. He went to Vietnam and cannot get compensation. 3. The applicant provides: * self-authored letter, undated * General Discharge Certificate * letter from the Army Review Boards Agency, dated 14 July 2014 * letter from the Office of the Adjutant General and the Adjutant General Center, undated * DD Form 214 for the period ending 25 March 1963 * Army Discharge Review Board (ADRB) Brief, dated 20 October 1970 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 military records are not available for review. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 25 March 1963 shows he enlisted in the Regular Army on 23 February 1960 for a period of 3 years. He was discharged under honorable conditions (general) on 25 March 1963 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities. 3. His ADRB Brief shows: a. Having completed 4 years and 2 months of prior active service, he reenlisted in the Regular Army on 19 May 1967 for a period of 3 years. b. He arrived in Vietnam on 2 December 1967. c. Nonjudicial punishment (NJP) was imposed against him in June 1968 for larceny. d. He departed Vietnam on 25 November 1968. e. NJP was imposed against him in June 1969 for failing to repair. f. In April 1970, he was convicted by a special court-martial of being absent without leave (AWOL) from 29 September 1969 to 7 April 1970. g. Charges were preferred against him for being AWOL from 29 June 1970 to 25 September 1970. h. He was discharged for the good of the service in lieu of trial by court-martial on 20 October 1970 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and issued an Undesirable Discharge Certificate. He completed 7 years and 7 months of total active service with 338 days of lost time. 4. On 16 November 1977, the ADRB upgraded his discharge to general under honorable conditions under the provisions of the SDRP. 5. On an unknown date, it appears the ADRB, having re-reviewed the applicant's case as required by Public Law 95-126, determined not to affirm the recharacterization of his discharge. 6. There is no evidence showing he did not receive all authorized pay for his military service. 7. He provided an undated letter wherein he states: * he has been trying to get compensation for exposure to Agent Orange * he was informed his discharge was not eligible under VA rules and he would have to get it changed to be eligible for benefits * he is now 70 years old * he reentered the Army in 1966 while inebriated and disoriented * during his first term of service he was told he was barred from reenlistment * he reported this when he got sober, but no one believed him or chose to ignore him * he kept complaining throughout his basic and advanced individual training * he was exposed to Agent Orange in Vietnam * since his discharge, he has had various skin problems, he lost one kidney, he had both his hips replaced twice, he had a heart attack, and he has been diagnosed with prostate cancer * everyone who ran off to Canada was pardoned * he was never paid for his prior service * he never stayed away over 30 days when he was AWOL so he wouldn't be considered a deserter * AWOL was the only way he could get out because no one believed him about his prior service * if nothing else, he should get his prior service pay 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 9. The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." 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. 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 there from in accordance with Presidential Proclamation 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. 10. Public Law 95-126 provided for a "Relook Program." All cases upgraded from under other than honorable conditions under the SDRP or Presidential Proclamation programs (and their extensions) required a second review and affirmation (or not) under uniform standards. DISCUSSION AND CONCLUSIONS: 1. The applicant wants affirmation of his general discharge for entitlement to VA benefits. However, a discharge is not changed for the purpose of obtaining VA benefits. Each request is individually considered based on the evidence presented. 2. His undesirable discharge was upgraded to general under honorable conditions as a result of the SDRP review in November 1977. It appears the general discharge was not affirmed by the ADRB in accordance with Public Law 95-125. 3. In the absence of evidence to the contrary, it is presumed his voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations and that the type of discharge directed and the reasons for separation were therefore appropriate. 4. His record of service included two NJPs, one special court-martial conviction, and 338 days of lost time. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, there is insufficient basis to affirm his general discharge. 5. His request for prior service pay was noted. However, there is no evidence and he provided no evidence which shows he was not paid for his military service. 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________X____________ 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) AR20150005363 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005363 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1