IN THE CASE OF:	  

		BOARD DATE:	  	  18 November 2008

		DOCKET NUMBER:  AR20080013645 


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, upgrade of his undesirable discharge, characterized as under conditions other than honorable to an honorable discharge.

2.  The applicant states, in effect, he received a discharge under other than honorable conditions because he was absent without leave (AWOL).  He also states, at the time, he had problems adapting to the birth of his daughter and after returning [to the United States] from Vietnam while AWOL.  He further states he was suffering from Post Traumatic Stress Disorder (PTSD) at the time of his discharge.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 14 February 1974; and Behavioral Health Services, LLC, Golden Valley, Minnesota, letter, dated 4 September 2007, subject:  Psychological Consultation Summary.

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 military service records show he enlisted and entered active duty in the Regular Army for a period of 3 years on 22 November 1971.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 63F (Recovery Specialist).  The applicant was assigned overseas to the U.S. Army Pacific (USARPAC) and served in Vietnam from 6 May 1972 through 3 February 1973.

3.  The applicant's military service records contain a copy of Headquarters, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, Summary Court-Martial Order Number 144, dated 24 August 1973.  This order shows that the applicant was arraigned and tried for violation of the Uniform Code of Military Justice (UCMJ), Article 86, Specification 1, in that he did, on or about 16 April 1973, without authority, absent himself from his organization and did remain absent until on or about 14 May 1973; and Specification 2, in that he did, on or about 23 May 1973, without authority, absent himself from his organization, and did remain absent until on or about 17 July 1973.  This document shows the applicant pled guilty to the Specifications and Charges and was found guilty of the Specifications and Charges.  This documents further shows that the applicant was sentenced to forfeit $175.00 pay per month for 1 month, reduction to the grade of private/pay grade E-2, and restriction to the limits of his unit of assignment for 30 days.  The sentenced was adjudged, approved, and ordered executed on 24 August 1973.

4.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 4 February 1974, that shows the captain serving as Commander, Company A, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, preferred charges against the applicant for violation of the UCMJ, Article 86, with the Specification that the applicant did, on or about 4 October 1973, without authority, absent himself from his organization, to wit:  Company C, 1st Battalion, 50th Infantry, Fort Hood, Texas, and did remain absent until on or about 30 January 1974.

5.  On 4 February 1974, the applicant requested a discharge for the good of the Service under the provisions of Army Regulation 635-200, Chapter 10.  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead 
to a bad conduct or dishonorable discharge, or a discharge under other than honorable conditions, if the request is approved; of the effects of the request for discharge; and the procedures and rights available to the applicant.

6.  The applicant signed his request for discharge which showed that he was making the request under his own free will and had not been subjected to any coercion whatsoever by any person; that he acknowledged guilt to the offenses charged; that he was afforded the opportunity to consult with counsel; that he 
was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration [now known as the Department of Veterans Affairs]; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf, which would accompany his request for discharge.  The applicant elected to submit a statement in his own behalf.  In his statement, the applicant stated, “I Gregory T_____ believe that I should be discharged from the Army for the good of the Service for the following reasons:  my real reason’s (sic) are because I can’t live like a soldier anymore.  Even though I tried, my inner self just don’t react the same as I do.  So sir, I request that I be discharged from the service.”

7.  On 4 February 1974, the captain serving as Commander, Company A, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, recommended approval of the applicant’s request for discharge from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  He stated the applicant demonstrated to his immediate supervisor that he is unwilling to adjust to military service and that any further disciplinary or rehabilitative action would be futile.  The commander also stated that the applicant had been interviewed and, in view of his statements, demeanor, and attitude, he believed discharge of the applicant would be in the best interest of the service.  The commander added that the applicant was pending trial for AWOL on 1 occasion totaling 118 days and that he had 2 prior periods of AWOL totaling 83 days for which he received a Summary Court-Martial.  The commander concluded by recommending the applicant be issued an undesirable discharge.

8.  On 6 February 1974, the lieutenant colonel serving as Commander, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, recommended approval of the applicant’s request for discharge from the U.S. Army for the good of the Service, under the provisions of chapter 10 of Army Regulation 635-200, with an undesirable discharge.

9.  On 11 February 1974, the major general serving as Commander, U.S. Army Training Center Engineer and Fort Leonard Wood, recommended approval of the applicant’s request for discharge pursuant to chapter 10 of Army Regulation 635-200 and issuance of an Undesirable Discharge Certificate.  The commander also directed the immediate reduction of the applicant to the lowest enlisted grade.

10.  The applicant’s military service records contain a Standard Form (SF) 93 (Report of Medical History), dated 1 February 1974 and an SF 88 (Report of Medical Examination), dated 1 February 1974.  These documents were completed in connection with the applicant’s separation medical examination and show the applicant stated his present health was “Fair” and the examining physician found the applicant qualified for separation.  The applicant indicated he had no signs of depression, excessive worry, loss of memory or amnesia, or nervous trouble of any sort.  His records also contain a DA Form 3082-R (Statement of Medical Condition), dated 14 February 1974, that shows the applicant confirmed that he underwent a separation medical examination more than 3 working days prior to his separation and that there had been no change in his medical condition.

11.  The applicant's military service records contain a copy of his DD Form 214 that shows he entered active duty this period on 22 November 1971 and was discharged on 14 February 1974, with a character of service of under conditions other than honorable, in accordance with the provisions of Army Regulation
635-200, Chapter 10 [for the good of the Service].  This document also shows at the time of his discharge the applicant had completed 1 year, 8 months, and
5 days net active service this period and 8 months and 28 days foreign service.  The DD Form 214 also shows that the applicant had 201 days lost under Title 10, United States Code, section 972, from 16 April 1973 through 13 May 1973,
23 May 1973 through 16 July 1973, and 4 October 1973 through 29 January 1974.

12.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

13.  The applicant’s military service records contain 2 DD Forms 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 28 March 1974 and 18 May 1979, that show the applicant requested upgrade of his undesirable discharge to an honorable discharge.  In his application, he stated, "[A]fter returning from Vietnam I was stationed at Fort Knox, KY.  The day I arrived, the First Sergeant began [to] downgrade me for my appearance.  I had not been used to this treatment while in Vietnam and I immediately went AWOL to get away from it.”  On 8 June 1982, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge was proper and equitable and denied his appeal.  The applicant was notified of the ADRB’s decision on 8 June 1982.

14.  In support of his application, the applicant provides a copy of his DD Form 214, with an effective date of 14 February 1974, which was previously introduced and considered in this Record of Proceedings.  He also provides a Behavioral Health Services, LLC, Golden Valley, Minnesota, letter, dated 4 September 2007, subject:  Psychological Consultation Summary, that shows Herbert A. B______, Licensed Psychologist, advised that he has seen the applicant since December 2006 and the applicant has dealt very effectively with PTSD symptoms that resulted from the war in Vietnam.  Doctor B_____ also states that the applicant was poorly prepared for the situation he entered in Vietnam and suffered numerous psychological impairments due to the action.  He further states the applicant has made significant gains by maintaining full-time employment with the city of Minneapolis, raised a family, has been an excellent father, and a wonderful role model in the community where he lives.  Doctor B______ concludes by recommending the applicant be considered for an upgraded discharge and reinstatement of his benefits.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

16.  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, 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.

17.  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.

18.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded to an honorable discharge because he had problems adapting to the birth of his daughter, returning [to the United States] from Vietnam while AWOL, and suffering from PTSD at the time of his discharge.

2.  There is no evidence the applicant submitted a request for ordinary leave, request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal reasons (i.e., based on problems associated with adapting to the birth of his daughter).  There is also no evidence of record that Army officials denied such a request.  In addition, there is no medical evidence of record, and the applicant provides insufficient evidence, to show he was suffering from PTSD at the time of his discharge.

3.  The evidence of record shows that the applicant requested a discharge for the good of the Service in lieu of trial by court-martial and the appropriate separation authority approved the applicant’s request for discharge.  The evidence of record also shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the appropriate discharge certificate was furnished.

4.  The evidence of record shows that the applicant had 2 periods of AWOL totaling 83 days for which he received a Summary Court-Martial.  The evidence of record also shows the applicant was pending trial for AWOL totaling 118 days when he submitted his request for discharge for the good of the Service.  This equates to 201 days (i.e., almost 7 months) AWOL during the applicant’s 3-year enlistment commitment.  In addition, the evidence of record shows the applicant completed only 20 months of his 36-month enlistment commitment.  Thus, the evidence of record shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

5.  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

____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)                                         AR20080013645



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ABCMR Record of Proceedings (cont)                                         AR20080013645



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