IN THE CASE OF:	  

		BOARD DATE:	        31 JULY 2008

		DOCKET NUMBER:  AR20080007414 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that while there is no error or injustice in his case, he had discovered new evidence to explain his behavior while in the military.  He goes on to state that he has been diagnosed as having post-traumatic stress disorder (PTSD), which explains his erratic behavior while at Fort Hood, Texas.  

3.  The applicant provides a self-authored letter explaining his application, a copy of his DD Form 214, and copies of psychiatric consultation sheets from the Department of Veterans Affairs (VA).

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 was born in Havana, Cuba on 18 June 1948.  He was inducted in Coral Gables, Florida on 14 August 1968.  He completed his basic combat training at Fort Gordon, Georgia and was transferred to Fort Leonard Wood, Missouri to undergo his advanced individual training (AIT) as a pioneer (combat engineer).

3.  He successfully completed his training and was transferred to Vietnam on 13 January 1969 for assignment to Company A, 65th Engineer Battalion, 25th Infantry Division as a pioneer.  He was advanced to the pay grade of E-3 on 18 January 1969 and on 20 February 1969, he was assigned the duties of a radio operator.  He was advanced to the pay grade of E-4 on 10 March 1969.  

4.  On 13 May 1969, he was awarded the Bronze Star Medal with “V” Device for heroism in connection with military operations against a hostile force on 26 April 1969.  

5.  On 8 May 1969, nonjudicial punishment (NJP) was imposed against him for wearing an altered uniform.  His punishment consisted of a forfeiture of pay for 1 month (suspended for 1 month). 

6.  He was placed in a position of commo chief on 31 July 1969 and was promoted to the rank of sergeant on 9 December 1969.  

7.  He departed Vietnam on 9 January 1970 and was transferred to Fort Hood, Texas on 21 February 1970, where he was assigned as a tactical communications chief in an engineer company. 

8.  On 26 June 1970, NJP was imposed against him for being absent without authority (AWOL) from 1 June to 9 June 1970.  His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of pay, extra duty and restriction.

9.  On 10 August 1970, he again went AWOL and remained absent in desertion until he surrendered to military authorities at Fort Jackson, South Carolina on 30 May 1972, where charges were preferred against him for the AWOL charge on 1 June 1972. 

10.  On 14 June 1972, an investigation was completed under Article 32, Uniform Code of Military Justice (UCMJ).  During the course of the investigation, the applicant told the investigating officer that he went AWOL because of a letter he received from his mother explaining that she thought his wife was on drugs and feared that his 2 year old daughter was not being properly cared for.  He also stated that he did not seek the assistance of his chain of command because he feared that his request would be denied. 

11.  On 16 June 1972, after consulting with his defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

12.  The appropriate authority approved his request for discharge on 23 June 1972 and directed that he be issued an Undesirable Discharge Certificate.

13.  Accordingly, he was discharged under other than honorable conditions on 27 June 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years and 9 days of total active service and had 674 days of lost time due to AWOL.  His awards included the National Defense Service Medal, the Bronze Star Medal with “V” Device, the Army Commendation Medal with one oak leaf cluster, the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.

14.  On 28 September 1977, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge under the Special Discharge Review Program (SDRP).  He contended at that time that he went AWOL because his parents were separating and he thought he could help to keep them together.  He further stated that he wanted to apply for citizenship and that a favorable discharge would help him in that endeavor.

15.  On 16 January 1978, the ADRB voted to upgrade his undesirable discharge under the SDRP to a general discharge (under honorable conditions) based on his awards, general aptitude, education level, length of service, his service in Vietnam, personal problems, and contributing and extenuating circumstances in a spirit of compassion.  On 7 July 1978, the ADRB affirmed his general discharge.

16.  On 1 May 1996, the applicant authorized the Miami, Florida Probation and Parole Services access to his military records for the purpose of a post-sentence investigation. 

17.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

18.  Public Law 95-126 was enacted in 1978.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

19.  Department of Defense Directive, 29 March 1978, announced uniform standards for the review of discharges or dismissals to ensure historically consistent uniformity as required by the provisions of Public Law 95-126.

20.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.

21.  Paragraph 3-7 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.  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 courtmartial, was administratively correct and in conformance with applicable regulations.
    
2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.
 
3.  Notwithstanding the actions of the ADRB to upgrade the applicant’s discharge to a general discharge under the SDRP, his discharge was effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was charged.

4.  The applicant’s contention that his erratic behavior while in the Army was the result of his PTSD has been noted and appears to be without merit.  The applicant offered two different reasons for going AWOL at two different times, one being that his wife was on drugs and not taking care of his family and the other was that his parents were separating and he wanted to prevent it from happening.  However, he has never offered any substantive evidence that either one actually happened and now offers a third and different reason for his extensive period of AWOL some 30+ years after the fact.

5.  The applicant's entire record of service was considered; however, given the extensive length of his absence and the available evidence surrounding his absence, it is clear that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel and that his service does not rise to the level of a fully honorable discharge.  

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 this requirement.









BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.





      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080007414





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ABCMR Record of Proceedings (cont)                                         AR20080007414



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