RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070015045 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Patrick H. McGann, Jr.

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Michael J. Flynn

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, in effect, that his undesirable discharge be upgraded to honorable.   

2.  The applicant states that his discharge was unjust because he was suffering from post traumatic stress disorder (PTSD).  He further states that his PTSD was the reason for him being absent without leave (AWOL).  

3.  The applicant provides copies of PTSD fact sheets obtained from the internet and three letters of reference.

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.  On 12 January 1968, the applicant enlisted in the Regular Army for 3 years.  He completed basic combat training and was assigned to Fort Gordon, Georgia for advanced individual training as a Radio Relay and Carrier Operator (31M2O).

3.  Item 38 (Record of Assignments) of the applicant’s Enlisted Qualification Record (DA Form 20) shows that his conduct and efficiency while in training at Fort Gordon, Georgia was fair.

4.  On 25 June 1968, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for AWOL during the period from on or about 3 to 20 June 1968.  The punishment included a forfeiture of $20.00 pay per month for 1 month, and 14 days restriction and extra duty.


5.  On 15 August 1968, the applicant was assigned for duty as a radio relay attendant with the 595th Signal Company, in the Republic of Vietnam.

6.  On 24 January 1969, the applicant was promoted to specialist four, pay grade E-4.

7.  On 28 April 1969, the applicant was reassigned for duty as a senior radio relay operator with the 107th Signal Company, in the Republic of Vietnam.

8.  Item 38 (Record of Assignments) of the applicant’s DA Form 20 shows that his conduct and efficiency while in the Republic of Vietnam was excellent.

9.  On 11 August 1969, the applicant was returned to the United States for duty at Fort Hood, Texas.

10.  On 17 September 1969, the applicant’s military occupational specialty was reclassified to 63B2O (Wheel Vehicle Repairman).

11.  On 13 August 1970, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 23 December 1969 to 7 August 1970. 

12.  On 17 August 1970, the applicant accepted NJP for AWOL on 15 August 1970.  The punishment included reduction to private first class, pay grade E-3 (suspended); a forfeiture of $54.00 pay per month for 1 month (suspended); and 14 days of extra duty.  On 14 September 1970, all of the suspended punishment was vacated.  The available records do not contain the circumstances regarding the vacating of this punishment.

13.  On 21 September 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

14.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

15.  On 22 September 1970, the applicant underwent a psychiatric evaluation.  Direct examination and review of his past history revealed no indication of psychiatric disorder that would prevent administrative action.  The applicant was rational, coherent and oriented to time, place and person.  There was no indication of psychosis or severe neurosis.  There were no disqualifying mental defects sufficient to warrant disposition through medical channels.  The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in board proceedings. 

16.  On 25 September 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 7 October 1970, the applicant was discharged accordingly.  He had completed a total of 1 year, 11 months, and 22 days of creditable active military service and had accrued 246 days of time lost due to being AWOL.

17.  On 12 February 1985, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.  The ADRB found that the applicant’s readjustment problems after returning from the Republic of Vietnam, including his alcohol abuse, were not severe enough to justify recharacterization of his service.  

18.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

19.  The UCMJ provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 30 days.

20.  The three letters of support, provided by the applicant, state, in effect, that he is a hard working, honest individual, who has reached out to help others and is a person to be admired.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The evidence of record clearly shows the applicant’s misconduct began prior to his tour of duty in the Republic of Vietnam.  Furthermore, the available evidence is insufficient to show that his continued misconduct after returning from overseas was the result of PTSD.

4.  The applicant underwent a psychiatric evaluation that found no indication of a psychiatric condition prior to separation.

5.  The applicant’s good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ ECP__  __MJF___  __PHM __  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

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.





_      Patrick H. McGann, Jr.__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.