IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080008259 


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 discharge (GD), under honorable conditions.

2.  The applicant states, in effect, that at the time of his incident (absence without leave (AWOL)) he had just returned from the Republic of Vietnam (RVN) and was essentially crazy.  He did not know he was suffering from post-traumatic stress disorder (PTSD).  He contends that he attempted suicide when he was AWOL. 

3.  The applicant provides a copy of psychological reports from his treating physicians; a copy of a consultation sheet from his service medical records (SMRs) showing he was treated for a suicide attempt; a copy of his DA Form 20 (Enlisted Qualification Record); a copy of a treatment record from St. John's Hospital, dated 23 June 1969; a copy of an Operational Report – Lessons Learned from the 199th Infantry Brigade (Light) (Separate), dated 13 May 1968; 7 supporting statements; and copies of his Department of Veterans Affairs (DVA) treatment records.

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 24 June 1966, the applicant enlisted in the Regular Army for a period of
3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 62E (Heavy Equipment Driver).  He attained the grade of private first class/E-3.  He served in the RVN from 16 November 1967 through 16 August 1968.  He performed duties as a construction machine operator and heavy truck driver with the 87th Engineer Company and B Company, 46th Engineer Battalion.

3.  On 30 September 1968, the applicant failed to return to his unit in the RVN from special leave and was reported AWOL.  On 31 October 1968, he was dropped from the rolls as a deserter.  He was returned to military control at Fort Sill, Oklahoma.

4.  On 22 September 1970, a special court-martial convicted the applicant of
AWOL from 30 September 1968 – 5 July 1969 (293 days).  The resultant sentence included confinement at hard labor for 12 months and a forfeiture of $50.00 pay per month for 3 months.  The applicant was confined from 5 July – 
21 September 1969, a period of 79 days.

5.  The applicant again departed in AWOL status on 25 October 1969 – 17 January 1970 (86 days), and from 12 February – 14 March 1970 (30 days).  Upon his return to military control, he was placed in confinement from 15 March – 3 April 1970.  

6.  On 30 March 1970, the applicant underwent a mental status examination by a psychiatrist and was found to be mentally responsible to distinguish right from wrong and adhere to the right.  He was found to have the mental capacity to understand and participate in board proceedings.  No disqualifying mental or physical disease or defect sufficient to warrant discharge through medical channels was found.  The psychiatrist opined that he would continue to be a non-effective Soldier throughout his tour of duty and recommended that he be discharged under the provisions of Army Regulation 635-212, by reason of unfitness.  He was cleared for administrative action as deemed appropriate by his command.

7.  On 3 April 1970, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-212 by reason of unfitness, with an Undesirable Discharge.  The unit commander indicated that he was initiating separation action based on the applicant's lengthy periods of AWOL, his poor attitude towards the Army, and his lack of motivation to perform his duties.  The applicant waived his right to consult with legal counsel and his right to an appearance before an administrative separation board.  He did not submit a statement in his own behalf.  The stockade chaplain submitted a statement on behalf of the applicant requesting a GD.  The applicant reported to the chaplain that he was medically evacuated from the RVN after 11 months with wounds, that he received the Bronze Star Medal, Purple Heart, and Combat Infantryman Badge.  He also reported that he was hospitalized for 5 weeks, that he had family and financial problems and that he was needed at home.

8.  On 9 April 1970, the separating authority waived further counseling and rehabilitation and approved the applicant's discharge.  He directed that the applicant receive an Undesirable Discharge.

9.  On 10 April 1970, the applicant was discharged after completing 2 years, 4 months, and 19 days of active Federal service.  His service was characterized as under other than honorable conditions on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He had 507 days of lost time due to AWOL and military confinement.

10.  The applicant provided a copy of a consultation sheet from his SMRs which show he was treated for a 14-day old razor cut to his left wrist, dated 8 July 1969. The applicant reported that he had attempted suicide and was treated by a civilian doctor while AWOL.

11.  The applicant provided a copy of a hospital report, dated 23 June 1969, which shows he was treated for a laceration to the left forearm.  The applicant reported that he was in good general health, that he had recently returned from the RVN where he sustained a superficial gunshot wound to the left shoulder.

12.  The applicant provided copies of his DVA treatment records showing that he began receiving treatment for PTSD in April 2005 as result of being involved in a fatality accident where a young man was killed and the applicant experienced numerous physical injuries, and exacerbated his wartime experiences in the RVN.  The applicant reported that he went AWOL on 3 separate occasions; that he could no longer deal with authority figures and that anyone who confronted him he saw as a Vietcong; and that he frequently re-lived being shot in the shoulder in May 1968 while carrying a wounded Soldier to a helicopter. 

13.  The applicant provided numerous supporting statements indicating that when he returned from the RVN he was a completely changed person.  He had mood swings, was violent, quick to anger, had bad dreams and was very jumpy.  He could not hold a job and had poor personal relationships.  

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  An Undesirable Discharge was normally considered appropriate for members separating under these provisions. 

15.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  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.

17.  On 16 November 1972, the Army Discharge Review Board considered the applicant's request for an upgrade of his discharge and denied his application.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's personnel record shows he had 507 days of lost time due to 
3 separate periods of AWOL and military confinement.  He departed in AWOL status from his unit in the RVN and was dropped from the rolls as a deserter.  He was convicted by a special court-martial after his initial period of AWOL.  

2.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge and reason for separation were appropriate considering all the facts of the case.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant indicated that he fully understood the ramifications of this type of discharge and voluntarily waived his right to counsel and an administrative separation board.
3.  The applicant now contends that he had a mental condition (PTSD) and attempted suicide while he was AWOL all associated with his wartime experiences in the RVN.  He also reported to his various treating physicians over the years, as well as to the DVA, that he received a gunshot wound to the left shoulder while carrying a wounded Soldier to a helicopter, was medically evacuated from the RVN and hospitalized for 5 weeks, and received both the Bronze Star Medal and Purple Heart.  He even reported these same events to the stockade chaplain prior to his discharge.  The evidence of record shows he performed duties as a construction machine operator and heavy truck driver with the 87th Engineer Company and B Company, 46th Engineer Battalion.  He departed the RVN in AWOL status after failing to return to duty from special leave.  His statements concerning his being wounded in action and receiving the Bronze Star Medal and Purple Heart are not supported by his official record. 

4.  It appears the DVA began treating the applicant for PTSD in April 2005 after he was involved in a fatal accident where a young man was killed.  His treating physician indicates that this incident exacerbated his wartime experiences in the RVN, because the applicant had been wounded and involved in combat with the Vietcong.  Since most of the applicant's reports about his experiences in the RVN are not supported by official records, his current diagnosis of PTSD 35 years after his discharge from the Army, is insufficient to warrant a change in his discharge.  Further, his alleged suicide gesture while in the Army, if real, does not excuse his lengthy periods of AWOL.  He was cleared psychiatrically prior to discharge and found mentally competent. 

5.  Based on the infractions of discipline shown in the record, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a change in this type of discharge.

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 did not submit any 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:

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.



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      _______ _   _______   ___
               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)                                         AR20080008259



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ABCMR Record of Proceedings (cont)                                         AR20080008259



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