RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 05 FEBRUARY 2004
         DOCKET NUMBER: AR2003091026                       


         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. John P. Infante		Member
Ms. Karen A. Heinz		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his “under conditions other than honorable” discharge be upgraded to an honorable or general discharge.

2. The applicant states, in effect, that he willingly went to war in Vietnam and was involved in, and saw, many disturbing things. He outlines the details of his combat experiences and states that after he was evacuated from Vietnam he just wanted to go home and see his wife and child. Because officials at the military hospital would not tell him when he would be able to take leave he finally decided to leave on his own and did so. He maintains that he was suffering from PTSD (posttraumatic stress disorder) at the time.

3. He states his combat experiences and combat wounds have resulted in numerous hospitalizations and that he still carries multiple shrapnel in his legs and armpit. He states that he has lived with the results of his military service for many years but is unable to obtain compensation or medical assistance from the Department of Veterans Affairs because of the character of his discharge.

4. He states that when his commander told him he could be discharged by signing some papers, the papers were blank. He notes that when he received his papers in the mail in the “mid to late 70’s” he went nuts and had to be hospitalized and seen by a “mental doctor.” He states he has been in and out of mental hospitals since he got out of the Army.

5. The applicant states that he realizes his actions were wrong and that if he could change the past he would. He states that his awards and decorations, his combat wound, his award of the Purple Heart, and that his “severe psychiatric problems because of [his] combat experiences…impaired [his] ability to serve” should serve as justification to upgrade his discharge. He also states that his nonjudicial punishment was for an isolated offense that was “driven by personal and marital problems” which also impaired his ability to serve.

6. In addition to his self-authored statement, the applicant provides extracts from his military personnel file, and a copy of his separation document.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on
25 March 1970. The application submitted in this case is dated 12 May 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. Records available to the Board indicate that the applicant was inducted and entered active duty on 17 April 1967. He was trained as an infantryman and in February 1968 was assigned to Vietnam as a rifleman.

4. On 11 February 1968 he was promoted to pay grade E-3. On 23 February 1968 he was wounded as a result of hostile action and awarded the Purple Heart.

5. As a result of his combat wounds, the applicant was evacuated from Vietnam and in April 1968 arrived at Fitzsimmons General Hospital.

6. In June 1968 the applicant accepted punishment under Article 15 of the Uniform Code of Military Justice for an AWOL (absent without leave) period between 1 June and 18 June 1968. His punishment included a suspended reduction to pay grade E-2, which the applicant did not appeal.

7. On 15 August 1968 the applicant again departed AWOL. He was dropped from the rolls of the Army as a deserter in September 1968 but returned to military control in January 1969. Upon return to military control he was assigned to the Special Processing Detachment at Fort Leonard Wood, Missouri, and assigned duties as a “duty soldier.” The applicant’s records do not contain any documentation regarding any punishment associated with the August 1968 to January 1969 AWOL period.

8. On 5 May 1969 the applicant departed AWOL for the third time. He was dropped from the rolls of the Army as a deserter in June 1969 and returned to military control in January 1970.

9. Although documents associated with his administrative separation were not in records available to the Board, his separation document and separation orders indicate that he was discharged under the provisions of Army Regulation
635-200, Chapter 10, in lieu of trial by court-martial.

10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides for the administrative separation for the good of the service. The separation is voluntary and generally



included a statement that the applicant understood the ramifications of a discharge under other than honorable conditions, which he might receive as a result of being discharged for the good of the service. In pertinent part, Chapter 10 states 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.

11. On 25 March 1970 the applicant was discharged. His service was characterized as “under conditions other than honorable” and he was issued an undesirable discharge certificate. The applicant authenticated his separation document. At the time of his separation he had 1 year, 10 months, and 19 days of creditable service and nearly 300 hundred days of lost time.

DISCUSSION AND CONCLUSIONS:

1. In the absence of evidence to the contrary, the applicant's administrative separation is presumed to have been accomplished in accordance with applicable laws and regulations.

2. The applicant’s contention that he served in Vietnam and was awarded a Purple Heart has been noted. However, none of those issues, individually or collectively, outweigh the seriousness of the applicant's conduct, and do not provide an adequate basis upon which the Board would grant relief as a matter of equity.

3. Although the applicant may have received nonjudicial punishment for one of his AWOL periods, it should be noted that the evidence indicates that he was discharged, at his request, in lieu of being tried by court-martial for AWOL and desertion, and not as a result of his nonjudicial punishment. The applicant’s experiences in Vietnam were not unlike those of many other Soldiers who, in spite of the traumas of war, served out their military commitment with honor.

4. Absent convincing evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not both tell right from wrong and adhere to the right, the PTSD issue does nothing to demonstrate an error or an injustice in his discharge.

5. 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 that requirement.

6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 March 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
24 March 1973. 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

__FNE__ __JPI __ __KAH __ DENY APPLICATION

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.




                  ____Fred N. Eichorn_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091026
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040205
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.