IN THE CASE OF:	  

		BOARD DATE:	       16 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010428 


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, in effect, that the Board affirm the upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP).

2.  The applicant states, in effect, that he recognizes his military service was poor and believes that 38 years of punishment is sufficient.  He also adds that if he were allowed a transfer from his unit at the time, none of his problems would have occurred.

3.  The applicant provides a copy of a physician's letter, dated 6 July 2004, showing he was diagnosed with and is actively being treated for Post Traumatic Distress Disorder (PTSD); a self-authored statement, dated 9 June 2008; and a copy of his DD Form 215 (Correction to the DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 May 2007, in support of his request.

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 he enlisted in the Regular Army for a period of 3 years on 21 April 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 62B (Heavy Vehicle Mechanic).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  

3.  The applicant's records further show he served in the Republic of Vietnam from 12 October 1967 to 12 October 1968.  His awards and decorations include the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal with four bronze service stars, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Valorous Unit Award, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant’s records reveal an extensive history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order on 24 February 1968; leaving his appointed place of duty on 13 March 1968; being absent without leave (AWOL) during the period on or about 2 June 1967 through 5 June 1967; and being AWOL during the period on or about 26 May 1969 through 6 June 1969. 

5.  Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows the applicant was reported AWOL during the periods 2 May 1967 to 4 May 1967; 24 May 1969 to 5 June 1969; and 1 August 1969 to 28 August 1969.  He was also reported dropped from the Army rolls on 29 August 1969 and remained in this status until 13 January 1970.

6.  On 14 January 1970, court-martial charges were preferred against the applicant for being AWOL during the period on or about 1 August 1969 through 13 January 1970.

7.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, the DD Form 214 he was issued at the time of his discharge shows he was discharged on 25 February 1970, as a result of administrative proceedings, in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations), in lieu of trial by court-martial, and his characterization of service was under other than honorable conditions.  This form further confirms that he completed a total of 2 years, 2 months, and 27 days of creditable active military service and he had 223 days of lost time.

8.  On 17 July 1972, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

9.  On 4 August 1977, the ADRB considered the applicant’s request under the DOD Discharge Review Program (Special) and directed the applicant’s discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions, effective 7 July 1977.  Accordingly, the applicant was reissued a DD Form 214 that shows he was discharged under honorable conditions.

10.  On 19 December 1978, the ADRB re-reviewed the applicant’s discharge as required by Public Law 95-126.  As a result of this review, the Board determined that the applicant did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD-SDRP was not affirmed.  This did not change the upgraded discharge he previously received; but, because of the new law, he would not be able to use his discharge to qualify for VA benefits. 

11.  The applicant submitted a self-authored statement in which he states that he served in the Republic of Vietnam and qualified for awards for valor.  He now suffers from PTSD and is being denied medical benefits by the Department of Veterans Administration (DVA) and concludes that 39 years is enough punishment for a young teenager who willingly volunteered to serve his country.

12.  The applicant submitted a letter, dated 6 July 2004, in which a physician stated that the applicant suffers from PTSD and chronic back pain.  He continues to struggle daily with severe anxiety and depends on family and friends for assistance.

13.  AR 635-200, then in effect, set forth the policy for administrative separation for unfitness.  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.



14.  On 4 April 1977, the 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 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.

15.  In October 1978, Public Law 95-126 was enacted.  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 were required.  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.

16.  The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service correction boards in order to entitle the service member to VA benefits.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions regarding his treatment for PTSD have been noted.  However, a review of the available record fails to show that he was suffering from PTSD while he was in the Army.  Furthermore, his service in Vietnam was also considered and noted.  However, these factors do not provide a sufficient basis for granting relief when considering his overall record of undistinguished service.  

2.  After review of the applicant’s discharge upgrade, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  The applicant’s administrative separation is presumed to have been accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  


3.  The evidence of record clearly shows that the applicant had a disciplinary record, to include several instances of being AWOL and other disciplinary issues. He clearly exhibited a total disregard for military authorities.  Notwithstanding the original determination by the ADRB, the official record shows that his service was not satisfactory and that his general discharge should not be affirmed.  

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not 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:

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
      
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)                                         AR20080010428



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ABCMR Record of Proceedings (cont)                                         AR20080010428



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