IN THE CASE OF:
BOARD DATE: 9 October 2008
DOCKET NUMBER: AR20080011534
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.
2. The applicant states that he had incurred psychological and physical disabilities during his tour of duty in Vietnam, which included post-traumatic stress disorder (PTSD) and a leg infection. These affected his reasoning and judgment. Also, he completed his first 3-year enlistment and had completed
1 year of his reenlistment before he went absent without leave (AWOL). The applicant explains that he is requesting an upgrade of his discharge so he can file a claim for compensation for presumptive disabilities that occurred while he was in Vietnam.
3. The applicant does not provide any additional documentation 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 17 September 1964, was awarded the military occupational specialty of heavy vehicle operator, served in Vietnam, and was promoted to pay grade E-4.
3. The applicant immediately reenlisted on 17 September 1967.
4. The applicant was AWOL from 14 December to 28 December 1967; 15 January to 3 July 1968; 31 January to 16 April 1969; and 7 September 1969 to 21 April 1976, for a total of 2,613 days of lost time.
5. On 13 September 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Unformed Code of Military Justice, for failing to stop at a red stop light. The applicant accepted NJP on 17 April 1969 for being AWOL from 31 March to 16 April 1969.
6. The applicant was convicted by a special court-martial on 1 August 1968 for being disrespectful in language towards a superior noncommissioned officer, for being AWOL from 14 December to 28 December 1967, and for being AWOL from 15 January to 3 July 1968.
7. In an undated letter, the applicant requested discharge in lieu of trial by court-martial for the good of the service. In that request the applicant stated he understood that he may receive an undesirable discharge, and that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs. The applicant did not submit any statement in his own behalf in conjunction with his request.
8. The applicants request was approved and, as a result, on 10 May 1976 the applicant was given an undesirable discharge.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant had a total of 2,613 days of lost time, he accepted NJP (twice), and he was convicted by a special court-martial. Such a service record certainly warranted an undesirable discharge, even when the fact he completed a 3-year enlistment is considered.
2. There is no evidence or indication that the applicant had any physical or psychological problems while he served as a heavy truck driver in Vietnam. As such, his contention that PTSD and a leg infection affected his reasoning and judgment is not a convincing argument.
3. The Board does not correct properly constituted records solely for the purpose of establishing entitlement to benefits from other agencies.
4. In view of the foregoing, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X______ ___X_____ ___X_____ 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.
_______ _ X _______ ___
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) AR20080011534
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