RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 May 2008
	DOCKET NUMBER:  AR20080003217 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 an upgrade of his discharge.

2.  The applicant states that the character of service he was given at the time of his discharge was not appropriate considering the circumstances leading to his discharge.  He further adds that the Army did not provide him the appropriate support he needed after his exposure to multiple traumatic experiences in the Republic of Vietnam, and that rather than providing him with counseling, Army officials threatened him not to talk about his experience in combat.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 25 May 1968, 22 October 1969, and 10 August 1973.  

	b.  Headquarters, U.S. Army Personnel Center, Fort Dix, New Jersey, Special Orders Number 222, dated 10 August 1973, discharge order.
		
	c.  Standard Form 88 (Report of Medical Examination), dated 26 June 1973.  

      d.  Standard Form 93 (Report of Medical History), dated 26 June 1973. 

	e.   Memorandum of approved separation, dated 8 August 1973, and allied documents and endorsements.    

	f.  DD Form 458 (Charge Sheet), dated 22 May 1973.

	g.  DA Form 20 (Enlisted Qualification Record), dated 17 October 1972.

      h.  Veterans Administration (VA) Form 21-4138 (Statement in Support of Claim), dated 19 October 2007.   

	i.  Psychological Evaluation, dated 30 December 2007, ASC Psychological Clinic, Mankato, Minnesota.

      j.  Undated character reference letter.

      k.  Self-authored personal statement, dated 1 February 2008.

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.  The applicant's records show that he enlisted in the Regular Army for a period of 3 years on 9 June 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 62A (Engineer Equipment Assistant).  He was honorably discharged on 25 May 1968 for the purpose of immediate reenlistment.  He reenlisted on 26 May 1968 and was again honorably discharged on 22 October 1969 for the purpose of immediate reenlistment.  He reenlisted for a period of 6 years on 23 October 1969.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant’s records show that he served in the Republic of Vietnam, from 29 March 1968 to 31 May 1968; Germany, from 4 May 1969 to 3 January 1970; the Republic of Vietnam, from 15 July 1970 to 14 July 1971; and Germany, from 14 October 1972 to 9 August 1973. 

4.  The applicant's record shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), two Overseas Service Bars, and the Air Medal with “V” Device.  

5.  The applicant was awarded the Air Medal with "V" Device (Fourth Award) for heroism while participating in aerial flight in Laos on 8 February 1971.  General Orders Number 3011, Headquarters, 10sst Airborne Division (Airmobile), dated 12 April 1971, cited the following reason:


[Applicant] distinguished himself while serving as a door-gunner aboard a UH-1H lift helicopter during a combat assault by troops of the Army of the Republic of Vietnam in Laos.  While flying over an area known to have enemy antiaircraft emplacements, the flight received heavy antiaircraft fire.  [Applicant] engaged the enemy positions with large volumes of accurate suppressive fire.  While directing his aircraft into and out of the landing zone, [Applicant] delivered effective return fire on the enemy antiaircraft positions.  

6.  The applicant's record reveals a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 22 November 1967, for wearing the fatigue uniform in public, on or about 1 November 1967.  His punishment consisted of forfeiture of $23.00 pay per month for 1 month, 14 days of restriction, and 14 days of extra duty; 

	b.  on 15 January 1973, for failing to go to his appointed place of duty, on or about 14 January 1973.  His punishment consisted of reduction to the rank/grade of private first class (PFC)/E-3 (suspended for 120 days), 7 days of restriction, and 7 days of extra duty; and   

      c.  on 14 March 1973, the suspended portion of the applicant’s punishment (reduction to PFC/E-3) imposed against him on 15 January 1973 was vacated and ordered executed.  Accordingly, he was reduced to PFC/E-3.

7.  On 22 May 1973, court-martial charges were preferred against the applicant for one specification of unlawfully striking another Soldier, on or about 16 March 1973; one specification of kicking another Soldier, on or about 16 March 1973; one specification of unlawfully striking a second Soldier, on or about 20 May 1973; one specification of willfully disobeying a lawful order from a superior noncommissioned officer, on or about 20 May 1973; and one specification of wrongfully communicating a threat to kill a Soldier, on or about 20 May 1973.

8.  On 2 July 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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.

10.  On 2 July 1973, the applicant’s immediate commander recommended approval of the applicant’s discharge with a General Discharge Certificate.  On the same date, the applicant’s intermediate and senior commanders recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.

11.  On 31 July 1973, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 10 August 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service with an Under Other Than Honorable Conditions characterization of service.  This form further confirms the applicant had completed a total of 6 years, 2 months, and 2 days of creditable active military service.  

12.  In his self-authored statement, dated 1 February 2008, the applicant describes his experience in the Republic of Vietnam.  Specifically, he recalls two instances where he was exposed to trauma.  The first was when he dropped a smoke grenade to mark the location of a downed friendly helicopter and its crew. The downed helicopter was subsequently bombed to prevent it from being captured by the enemy; the applicant felt he was probably responsible for the death of American Soldiers.  The second, was when South Vietnamese soldiers hung on to the skids of a helicopter after their location was overrun, and the applicant had to stomp on their hands so they would let go of the helicopter and allow it to lift off.  Upon his reassignment to Germany, he discussed his trauma with a military psychiatrist.  However, the applicant states, the psychiatrist told him not to mention those stories again.  He then started drinking heavily to escape the trauma and the painful memories.  He ultimately got in trouble at the unit motor pool when he struck another Soldier, but could not remember what happened due to his intoxication.  After discharge, he struggled with the events he experienced in Vietnam and continued drinking heavily until he began working at Process Displays and Printing Company, Minneapolis, Minnesota, and with help from his spouse, he has been sober for over 20 years.  

13.  In an undated character reference letter, the applicant’s supervisor at Process Displays and Printing Company, Minneapolis, Minnesota, remarks that the applicant is a hard-working, pleasant, and dependable employee.

14.  In a her statement in support of the applicant's VA claim, dated 19 October 2007, the applicant’s spouse comments on the difficulties and struggle the family encountered during the early years of their marriage and the impact of his drinking problem.  She also remarks on the applicant's pride of his service to his country and concludes that he is a loving husband, father, and grandfather.  

15.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 
15 year statute of limitations. 

16.  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 charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, at the time an undesirable discharge was normally considered appropriate.

17.  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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant’s award of the Air Medal with "V" Device was noted.  Similarly, the character reference letters as well as the applicant’s self-authored statement describing the circumstances that led to his discharge and his ability to overcome his drinking problems and the events he experienced in Vietnam were also considered.

3.  Nevertheless, there is no evidence in the available records and the applicant did not provide sufficient evidence showing that his acts of indiscipline were the result of a drinking problem or his traumatic experience.  Additionally, there is no evidence and the applicant has not provided sufficient evidence showing that he utilized the support channels available at his installation to resolve those issues.  

4. The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army under such circumstances.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

5.  There is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.  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 evidence that would satisfy that requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.

								XXX
      ______________________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080003217



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508