IN THE CASE OF:	  

	BOARD DATE:	  25 November 2008

	DOCKET NUMBER:  AR20080014294 


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 his discharge under honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that at the time of his discharge he was suffering from post traumatic stress disorder (PTSD); however, help was not made available to him.  Currently, the Department of Veterans Affairs (VA) has rated him with a 100 percent service connected physical disability. 

3.  The applicant provides no supporting documentation.

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 14 May 1969, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 14 November 1969, the applicant was enrolled in the 82nd Company, Noncommissioned Officer Candidate School, Fort Benning, Georgia.

4.  On 17 March 1970, the applicant was promoted to sergeant, pay grade E-5.

5.  On 27 March 1970, the applicant was discharged for the purpose of immediate reenlistment.  On 28 March 1970, he reenlisted for 6 years in the Regular Army. 

6.  On 25 June 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for dereliction of duty by sleeping in class.  The punishment included 9 days of extra duty.

7.  On 13 July 1970, the applicant accepted NJP for dereliction of duty by failing to report to the mess hall.  The punishment included forfeiture of $40.00 pay per month for 1 month and 14 days restriction and extra duty.

8.  On 26 July 1970, the applicant was placed on orders for assignment to the Republic of Vietnam.

9.  On 2 September 1970, the applicant accepted NJP for being absent without leave (AWOL) for 8 days.  The punishment included forfeiture of $70.00 pay per month for 2 months.

10.  In September 1970, the applicant was assigned for duty as a squad leader with the 4th Battalion, 31st Infantry Regiment, 196th Infantry Brigade, in the Republic of Vietnam. 

11.  On 4 August 1971, the applicant was reassigned for duty as a platoon sergeant with the 1st Battalion, 4th Combat Support Training Brigade, Fort Ord, California.

12.  On 5 November 1972, the applicant was reassigned for duty as a Fire Team Leader with the 2nd Battalion, 4th Infantry Regiment, in the Federal Republic of Germany.

13.  On 26 February 1974, the applicant was promoted to staff sergeant, pay grade E-6.

14.  On 28 October 1975, the applicant returned to the United States for duty with the 1st Battalion, 58th Infantry Regiment, at Fort Benning, Georgia.

15.  On 29 March 1976, the applicant was discharged for the purpose of immediate reenlistment.  On 30 March 1976, the applicant reenlisted for 3 years in the Regular Army.

16.  On 3 March 1978, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the period from 6 January to 10 February 1978.

17.  On 6 April 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

18.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

19.  On 3 May 1978, the separation authority approved the applicant’s request for discharge and directed that he be issued a General Discharge Certificate.  On 
15 June 1978, the applicant was discharged accordingly.  He had completed a total of 8 years, 11 months and 21days of creditable active military service and had accrued 43 days of time lost due to AWOL.

20.  On 26 January 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.



21.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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.

22.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 30 days.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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 type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  There is no available evidence of record showing that the applicant was medically unfit for duty.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080014294



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