IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080008247 


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 undesirable discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states that he was released from the Army as a convenience to the government for not being able to adjust to the new modern volunteer Army life.  He believes that he was already suffering from Post Traumatic Stress Disorder (PTSD) from his time in Vietnam.  He states that his conduct was excellent and good until he returned to the United States.  He had trouble adjusting to Army life and his time in Vietnam had caused a lot of distress in his life.

3.  The applicant provides a copy of his Report of Mental Status Evaluation, dated 18 September 1973, and a copy of page 3 of his DA Form 20 (Enlisted Qualification Record).

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 enlisted in the Regular Army on 29 September 1967 for a period of three years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 76Y (armorer/unit supply specialist).  He was advanced to specialist four, E-4, on 16 February 1968.  The applicant was honorably discharged on 18 June 1969 for the purpose of immediate reenlistment.  

3.  The applicant reenlisted on 19 June 1969.  

4.  On 24 June 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 20 June 1969 to 23 June 1969.  His punishment consisted of a reduction to the rank of private first class, E-3.

5.  The applicant was assigned to Vietnam on 9 April 1970.

6.  On 11 July 1970, he accepted NJP under Article 15 for being incapacitated for the proper performance of his duties.  His punishment consisted of a forfeiture of $25.00 pay for one month.

7.  He departed Vietnam in April 1971 and he was reassigned to Germany.  After he completed 7 months of service in Germany, he was then reassigned to the continental United States at Fort Knox, Kentucky.

8.  The applicant was promoted to specialist five on 10 August 1971.

9.  On 14 September 1972, the applicant accepted NJP under Article 15 for being absent from his appointed place of duty.  His punishment consisted of 14 days extra duty and a forfeiture of $50.00 pay for one month.  

10.  On 14 November 1972, the applicant accepted NJP under Article 15 for being AWOL from 7 November 1972 to 11 November 1972.  His punishment consisted of a forfeiture of $25.00 pay for one month.  

11.  The applicant underwent a mental status evaluation on 18 September 1973. He was rated "passive" for behavior, his level of alertness was found to be “dull,” his level of orientation was rated “fully oriented,” his mood was rated "depressed," his thinking process was clear, his thought content was rated "normal," and his memory was rated "good."  It was determined that he was mentally responsible, that he was able to distinguish right from wrong, able to adhere to the right, that he had the mental capacity to understand and participate in board proceedings, and that he met the retention standards prescribed in chapter 3, Army Regulation 40-501.

12.  On 6 June 1973, charges were preferred against the applicant for being AWOL from 30 March 1973 to 4 June 1973.

13.  On 16 June 1973, additional charges were preferred against the applicant for being AWOL from 12 June 1973 to 14 August 1973 and for escaping from lawful confinement in the Post Confinement Facility, Fort Knox, Kentucky.

14.  On 7 September 1973, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge was issued.  He elected to submit statements in his own behalf.  However, his statements are not available.

15.  On 5 October 1973, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10, with issuance of an Undesirable Discharge Certificate.  The applicant was reduced to the lowest rank of private, E-1.

16.  On 16 October 1973, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 3 years, 11 months, and 12 days of active military service with 139 days of lost time due to AWOL.  

17.  His service personnel records contain an OSA Form 172 (Case Report and Directive) which indicates he received conduct and efficiency ratings of “excellent/excellent” for the period 1 May 1971 to 31 August 1971, “average/ average” for the period 1 September 1971 to 28 February 1972, “average/ average” for the period 1 March 1972 to 30 November 1972, “unsatisfactory/ unsatisfactory” for the period 30 March 1973 to 27 April 1973, and “not evaluated/not evaluated” for the period 28 April 1973 to 16 October 1973.

18.  On 10 September 1974 and 16 April 1986, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

19.  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 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.

20.  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'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 applicant's record of service shows he received four Article 15s.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to a general discharge.

3.  The applicant’s statements are noted.  However, there is insufficient evidence to substantiate the applicant's claims or that the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to general under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  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.



__________xxxx___________
       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)                                         AR20080008247





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ABCMR Record of Proceedings (cont)                                         AR20080008247



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