PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 29 August 2002
         DOCKET NUMBER: AR2002073818


         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. William Blakely		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Harry B. Oberg		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.

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2. The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

3. The applicant states, in effect, that he is currently being treated by a psychologist and a psychiatrist even though the Army failed to recognize that he was suffering from a Post Traumatic Stress Disorder (PTSD) after the war. He states that his performance as a soldier was excellent, and that it is unfair that he received a bad discharge after completing 1 year, 7 months, and 7 days of active military service when draft dodgers were pardoned by the President, which was a slap in the face to a combat veteran. In support of his application, he submits the following documents: two separation documents (DD Forms 214); awards certificates for the Purple Heart (PH), the Bronze Star Medal (BSM), and
Air Medal (AM); a certificate of appreciation; honorable discharge certificate; six letters of support; and a letter from the staff psychologist of the Department of Veterans Affairs (DVA), Altoona, Pennsylvania.

4. The applicant’s military records show that he was honorably separated for the purpose of immediate reenlistment on 6 January 1967, after completing 1 year and 3 days of creditable active military service. He immediately reenlisted for
4 years on 7 January 1967, and he continuously served on active duty until he was undesirably discharged on 29 November 1971.

5. The applicant’s record shows that he served in military occupational specialty (MOS) 11C (Indirect Fire Crewman) and the highest rank he attained while serving on active duty was sergeant/E-5 (SGT/E-5). It also shows that he served in the Republic of Vietnam (RVN) from 24 July 1968 to 23 July 1969, with Company D, 1^st Battalion, 12^th Calvary Regiment, 1^st Air Cavalry Division. The record also shows that during his active duty tenure he earned the following awards: PH; BSM; AM; Vietnam Service Medal; Republic of Vietnam Campaign Medal with 60 Device; and the National Defense Service Medal.

6. The applicant’s record also shows a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the following two separate occasions: 1 April 1970, for parking his privately owned vehicle in a prohibited parking area; and 6 April 1970, for three specifications of disobeying a lawful general order. In addition, on 18 June 1968, the applicant was convicted by a special court-martial for two periods of being absent without leave (AWOL); from 16 September 1967 to 6 May 1968; and from 10 May 1968 to 19 May 1968.

7. On 28 October 1971, subsequent to his completing his combat tour in the RVN, court-martial charges were preferred against the applicant for two periods of AWOL: from 5 June 1970 to 15 July 1970; and from 12 August 1970 to
15 October 1971.
8. The specific facts and circumstances pertaining to the applicant’s discharge processing are not on file in the record. However, there is a properly constituted separation document (DD Form 214) on file that contains the authority, reason, and characterization of the applicant’s discharge. It confirms that he was administratively discharged on 29 November 1971, under the provisions of chapter 10, Army Regulation 635-200, by reason of conduct triable by
court-martial, and that he received an UD. At the time of his discharge, he had completed a total of 3 years, 10 months, and 8 days of creditable active military service and had accrued 432 days of time lost due to AWOL.

9. In support of his application, the applicant provides a letter confirming that he is being treated by a DVA staff psychologist for a PTSD that is based on his service in the RVN. He also provides a letter of support from the Manager of Emergency Services for the American Red Cross, Blair County Chapter, Altoona, Pennsylvania, which indicates that the applicant is still struggling with uncertainties based on his service in the Vietnam War, but still manages to raise a family and be a productive citizen of Blair County. He also provides several letters from family members and friends that attest to his excellent character and outstanding post service conduct. These supporting letters also indicate that the applicant had lost his mother prior to entering the military and was experiencing server family problems prior to and after entering the Army.

10. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue of limitations.

11. 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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after court-martial charges have been preferred. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

CONCLUSIONS:

1. The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army. However, the record does contain a properly constituted DD Form 214 that contains the authority and reason for his separation. Therefore, the Board presumes government regularity in the discharge process.

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2. The separation document confirms that the applicant was discharged for the good of the service/in lieu of trial by court-martial. Procedurally, this would have required him to consult with legal counsel to be advised of the basis for the contemplated court-martial, the rights available to him, and the effects of an UD. In addition, he would have been required to admit guilt to the stipulated offense under the UCMJ and to voluntarily request, in writing, an administrative discharge in lieu of trial by court-martial.

3. Although the evidence of record shows that the applicant’s discharge was proper and equitable at the time it was issued, the Board also notes that the applicant’s misconduct was primarily AWOL related, a strictly military offense that caused no harm to any person or to the civilian community.

4. In contrast to his record of misconduct, the applicant’s military service record includes an outstanding combat service record. This includes his completing a full tour in the RVN, rising to the rank of SGT and earning the BSM, AM, and PH.

5. The evidence also confirms that subsequent to his discharge, the applicant has been diagnosed with a PTSD by DVA medical personnel. This PTSD diagnosis made several years after the fact cannot with certainty be connected to the misconduct that resulted in his discharge. However, this PTSD condition, coupled with the family problems he was experiencing after his combat service in the RVN, could easily have contributed to his misconduct. Thus, the Board finds that they should be viewed as extenuating factors that contributed to the misconduct that ultimately resulted in his discharge.

6. Finally, it is clear that the applicant has been a productive and contributing member of his community since his discharge, as evidenced by the supporting character references he provided with his application. Therefore, the Board concludes that the applicant’s outstanding record of combat service and his excellent post service conduct mitigate his military related misconduct sufficiently to upgrade his UD to a GD in the interest of equity.

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

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that on 29 November 1971, the individual concerned was issued a general, under honorable conditions discharge, in lieu of the UD of the same date he now holds; and by issuing him a separation document that reflects this change.

BOARD VOTE:

__MKP__ __CJP __ _ _HBO__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Margaret K. Patterson__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002073818
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/29
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	FULL RELIEF
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.
3.
4.
5.
6.