RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060011937 


	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.


	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, in effect, that his 21 July 1972 discharge be upgraded to general. 

2.  The applicant states, in effect, he believes the character of his discharge should be general, under honorable conditions.  He also states that he served in aviation for his entire career including in Vietnam.  He served honorably and liked it so much that he reenlisted after his first enlistment.  He served with honor until he returned from Vietnam suffering from post traumatic stress disorder (PTSD).  He was put in a tank battalion as a tank commander, but he wanted to remain in aviation.  He was self medicating his PTSD with booze.  While serving on the tanks, he served with honor, but was very unhappy.  He appeared before the battalion commander requesting to be transfer back to aviation.  He even went to the aviation battalion at Fort Carson, Colorado, and they said they would accept him if the tank battalion commander would release him to them.  This is where he had served in Vietnam and he felt a close relationship with the unit.  He messed up when he was not thinking right and went home without permission.

3.  The applicant further states he is now 100 percent service-connected disabled and rated at 50 percent for PTSD.  With his requested and sincere actions that he was taking in order to get transferred back to aviation, someone should have recognized the PTSD he was suffering from and sent him for medical care.  He did not get any help or care with his problem.  He only got sent home with the under conditions other than honorable discharge.  After his over 3 years of honorable service and his combat record, he should have received help instead of the discharge.  If he had been sent back to aviation, he would possibly still now be on active duty.  He loved it!  When he accepted the actions that were taken to send him home, he was told that he would receive a general, under honorable conditions discharge.  He did not receive his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in the mail until 1974 when he applied for a Department of Veterans Affairs (VA) loan.

4.  The applicant provides copies of his DD Forms 214 dated 28 October 1970 and 21 July 1972, in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, upgrade of the applicant's discharge.

2.  In a three and half page statement of support, counsel states that their review of the case file revealed the applicant voluntarily enlisted in the Army during the Vietnam War.  In January 1969, he began basic training at Fort Knox, Kentucky, and was thereafter trained to be a 67G, by military occupational specialty (MOS) and completed advanced individual training at Fort Eustis, Virginia.  When assigned to Fort Rucker, Alabama, in August 1969, he was mal-assigned as a heavy truck driver in the 83rd Engineer Battalion until December 1970.  On 28 October 1970, he received a fully honorable discharge and reenlisted for a
6-year enlistment and duty in Vietnam.  He was assigned to Vietnam as a U-8 and U-21, Airplane Repairman, and served in combat from January 1971 to
mid-December 1971.  While in Vietnam, he rose to the rank of specialist five
(E-5) while servicing aircrafts within the 1st Signal Brigade Aviation Detachment. Returning from Vietnam, the applicant reported to Fort Carson, Colorado, where he was again mal-assigned as a 16R, vulcan gunner, in the 4th Battalion, 61st Air Defense Artillery Regiment.

3.  Counsel also stated that the applicant was disadvantaged by his youth and by lack of education through high school level, based on the DoD personnel policies existent at this time in the Vietnam War period.  Counsel opined that the applicant faced the challenge of PTSD when he returned to his CONUS posting and the frustrating circumstances wherein Army units were kept severely under strength. He was placed in a strange MOS instead of his MOS for which he had reenlisted for 6 years and in which he had just so successfully served in Vietnam.  The applicant appeared to have gone absent without leave (AWOL) for reasons of stress, poor leadership, mal-assignment, complete frustration, and utter disappointment with his circumstances.  The American Legion argues for the Board to extend understanding and to have compassion for the youthful mistake made by this (at the time) immature and disappointed combat veteran.

4.  Counsel provides no additional documentation in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 July 1972, the date of his discharge from active duty.  The application submitted in this case is dated 2 August 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's military records show he enlisted in the Regular Army, as a private, pay grade E-1, on 27 January 1969, for 3 years.  He completed basic and advanced individual training and was awarded primary MOS 67G, Airplane Repairman, on 5 August 1969.  He was advanced to pay grade E-4 on 5 August 1969.  

4.  On 23 April 1970, he was punished under the provisions of Article 15, Uniform Code of Military Justice, (UCMJ), for dereliction in the performance of his duties.  His punishment included an oral reprimand; extra duty for a period of 7 days, 2 hours per day; and reduction to pay grade E-3.  He was reduced to pay grade E-3 on 23 April 1970.

5.  On 24 August 1970, he was punished under the provisions of Article 15, UCMJ, for failure to go at the time prescribed to his appointed place of duty.  His punishment included reduction to pay grade E-2, forfeiture of $20.00 a month for a period of one month, and an oral reprimand.  He was reduced to pay grade E-2 on 24 August 1970.

6.  The applicant was advanced to pay grade E-3 on 26 October 1970.

7.  The applicant was honorably discharged for the purpose of immediate reenlistment on 28 October 1970.  He reenlisted in pay grade E-3 on 29 October 1970, for 6 years.

8.  The applicant departed for Vietnam on 28 January 1971.

9.  The applicant was promoted to pay grade E-4 on 15 February 1971 and to pay grade E-5 on 5 August 1971.

10.  The applicant completed his tour of duty in Vietnam on 15 December 1971 and was assigned to Fort Carson, Colorado.  At Fort Carson he was assigned to the 4th Battalion, 61st Artillery, as a gunner in MOS 16R.

11.  On 25 February 1972, he was punished under the provisions of Article 15, UCMJ, for failure to go at the time prescribed to his appointed place of duty.  His punishment included forfeiture of $14.00 (suspended for 30 days from 25 February to 25 March 1970). 

12.  The applicant was awarded a secondary MOS of 64C, Motor Transport Operator/Driver on 29 February 1972.


13.  On 15 March 1972, he was punished under the provisions of Article 15, UCMJ, for failure to go at the time prescribed to his appointed place of duty.  His punishment included reduction to pay grade E-4 and forfeiture of $40.00.  The reduction was suspended until 3 June 1972.

14.  The applicant was reported AWOL on 3 May 1972 and dropped from the rolls of the organization on 3 June 1972.  He returned to military control on 7 June 1972.

15.  On 8 June 1972, a Charge Sheet (DA Form 458) was prepared by the Commander, US Army Garrison, Fort Carson.  The applicant was charged with one specification of AWOL from 3 May 1972 to 7 June 1972.

16.  On 13 June 1972, after being advised of his rights under Article 31, UMCJ, the applicant elected to submit a statement in his own behalf.  The applicant stated, he believed the Army was a form of slavery, and men were forced to do things which they did not believe in, and he did not condone the lies that were deliberately told to Soldiers upon enlistment and reenlistment.  He did not believe that he personally could be rehabilitated because of the way that he had been treated and lied to while in the Army.  He would never be satisfied on any post again, and he would go AWOL no matter what trouble he would be in.  He would be more than happy to take any type of discharge rather than stay in this mockery of an Army.

17.  On 13 June 1972, the applicant signed a disposition form, Subject:  Eligibility for Department of Veterans Affairs Benefits and Recharacterization of Discharge.  The applicant acknowledged that he might be ineligible for most Army benefits and VA benefits.   

18.  On 14 June 1972, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration if an undesirable discharge was issued.  He also acknowledged that trial by court-martial under the circumstances could lead to a bad conduct discharge or dishonorable discharge, and the effect of this request for discharge, and the rights available to him.  He waived his rights and elected to submit a statement in his own behalf; however, a third and separate statement [besides those referred to in paragraphs 16 and 17 above] was not found in his service record. 



19.  On the same date, the applicant's commander recommended approval of the applicant's request to be discharged for the good of the service.  He felt that any further attempts at rehabilitation would be futile.  The commander recommended that the request for discharge for the good of service be approved and that the applicant be given an Undesirable Discharge Certificate.

20.  On 27 June 1972, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial.  It was directed an Undesirable Discharge Certificate be issued and reduction to the lowest enlisted grade.

21.  The applicant was discharged on 21 July 1972, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service.  He was credited with 1 year, 6 months, and 21 days of net service this period and 3 years, 3 months, and 23 days total active service.  He was also credited with lost time from 3 May 1972 to 2 June 1972, 2 June 1972 to 6 June 1972, and 16 June 1972 to 13 July 1972.

22.  There is no evidence the applicant sought treatment for or was diagnosed with PTSD.

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

24.  Army Regulation 635-200 sets forth the basic authority for 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, 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.  However, at the time of the applicant’s separation the regulation provided for the issuance of an Undesirable Discharge Certificate.

25.  Army Regulation 635-200, chapter 3-7b, also 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.



DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to general.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  

2.  Notwithstanding his contention that he was self-medicating himself for PSTD which made it very difficult for him to function as a Soldier in a tank battalion, absent medical evidence, such as the findings of a physician which would indicate that he suffered from PSTD, that issue does nothing to demonstrate an injustice in his undesirable discharge.  The applicant has provided insufficient evidence to show that his discharge was unjust.  Therefore, there is no basis to conclude that he suffered from any mentally unfitting condition sufficient to warrant disposition through medical channels, prior to the misconduct which led to his separation.

3.  The evidence shows after charges were brought against him for going AWOL, he requested a discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a special court-martial to prove his innocence.  In a statement submitted in his own behalf he stated that, "he did not believe that he personally could be rehabilitated because of the way that he had been treated and lied to while in the Army.  He would never be satisfied on any post again, and he would go AWOL no matter what trouble he would be in.  He would be more than happy to take any type of discharge rather than stay in this mockery of an Army."

4.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service were both proper and equitable. 

5.  The applicant's request for discharge for the good of the service was approved on 27 June 1972.  He was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial.

6.  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 this requirement.

7.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 July 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 July 1975.  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.
9.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KLW_  ___PM___  __KSJ__  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.




_____Kenneth L. Wright _____
          CHAIRPERSON




INDEX

CASE ID
AR20060011937
SUFFIX

RECON

DATE BOARDED
20070510
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19720722
DISCHARGE AUTHORITY
AR635-200, Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A70
2.

3.

4.

5.

6.