RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060011054 


	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. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Edward E. Montgomery

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his Undesirable Discharge, characterized as under other than honorable conditions, be upgraded.

2.  The applicant states, in effect, that because of his job as a door gunner in the Republic of Vietnam, he suffered from post-traumatic stress disorder (PTSD) which caused his misconduct and involvement with alcohol. 

3.  The applicant provides medical treatment records from the Department of Veterans Affairs (DVA); a DVA fact sheet about PTSD and a copy of a DVA compensation and pension examination.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 27 February 1970, the date of his discharge from the Army.  The application submitted in this case is dated 30 July 2006.

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 limitations 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.  The applicant has another case before the ABMCR (Docket Number AR20060011196) wherein he requests a correction to his record to show all awards to which he is entitled.  That request will be handled by a separate Record of Proceedings.

4.  On 20 March 1967, the applicant enlisted in the Regular Army for a period of three years.  He was trained in, awarded, and served in military occupational specialty (MOS) 67N (Single Rotor Turbine Helicopter Mechanic).  

5.  The applicant served in the Republic of Vietnam from 23 September 1967 through 22 September 1968.  He performed duties as a helicopter mechanic and crew chief with the 119th Aviation Company.  He attained the grade of specialist four/E-4 and received the Air Medal, the Aircraft Crewman's Badge, the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Marksman Marksmanship Qualification Badge with Rifle Bar M-14, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar M-16.

6.  On 26 November 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go to formation.  His punishment consisted of 15 days of extra duty.  

7.  The applicant's disciplinary history shows four periods of absence without leave (AWOL).  On 15 March 1969, the applicant was convicted by special court-martial of AWOL (6 January – 18 February 1969).  He was sentenced to a reduction in grade to private/E-2 and a forfeiture of $75.00 pay per month for six months.  On 21 March 1969, only so much of the sentence as provided for forfeiture of $50.00 pay per month for six months and the reduction in grade of private/E-2 was approved and ordered executed.

8.  On 10 December 1969, charges were preferred against the applicant for AWOL (7 April – 24 September 1969.) 

9.  On 28 January 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, in lieu of trial by court-martial.  

10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He submitted a statement in his own behalf requesting a general, under honorable conditions discharge based on his previous good service, to include exemplary service in the Republic of Vietnam.  He indicated that he had personal problems involved with his divorce.  

11.  On 20 February 1970, the separation authority approved the applicant's request for discharge and directed he be issued an Undesirable Discharge.

12.  Accordingly, the applicant was discharged on 27 February 1970 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 2 years, 3 months, and 10 days of active duty and accrued 242 days of lost time due to AWOL. 

13.  The applicant's service medical records were not available for the Board's review.  He provided copies of his DVA medical treatment records from 2005 where he is being followed for chronic depression with PTSD.  

14.  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 a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

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

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had four periods of AWOL totaling 242 days of lost time.  He received NJP on one occasion and was convicted by a special court-martial for a period of AWOL.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.
In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  

3.  The applicant's service medical records were not available for review and the applicant did not provide any evidence showing he received medical treatment for PTSD while in the Army.  The statement he provided at the time of his discharge indicated that his primary problem stemmed from his ongoing divorce. 

4.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no justification to change the characterization of his service. 

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 did not submit any evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 February 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
26 February 1973.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jea___  __jlp___  __eem___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



						James E. Anderholm
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011054
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19700227
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.