IN THE CASE OF:	  

		BOARD DATE:	       11 December 2008

		DOCKET NUMBER:  AR20080014451 


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 undesirable discharge be upgraded to an honorable discharge due to his health condition, post traumatic stress disorder (PTSD).

2.  The applicant states, in effect, that his previous honorable discharge gave no indication that his mental health was impaired due to PTSD resulting from his service in Vietnam. 

3.  In an attached, unsigned letter, dated 17 July 2008, the applicant reports that he was traumatized when he enlisted by learning that his parents were not married when he was born and by being forced to go by his legal (mother's) name and not the name he had used all his life.  He thought that being a Soldier would help him "pull myself up by my own bootstraps."  His mother did not want him to go to Vietnam; however, having completed basic training, the first thing he had ever tried away from home, he thought he could handle anything.  He got married a week before he was due to go to Vietnam.  Because he had someone to come home to, he became "a hero's hero" and he received several medals.  His situation in Vietnam could "only be likened to hell."  He saw friends getting killed, body parts everywhere.  During Tet 1968, he had to endure a night in a foxhole with others who were smoking marijuana because they could not deal with their own fears.  After a year of this, he was traumatized.  He reenlisted and then he came home to find his wife living with another man.  Two weeks later his baby daughter was killed in an automobile accident, which further deepened his sense of loss.  With all of these personal problems and recurring dreams about Vietnam he turned to alcohol for escape.  He purchased a new car with his reenlistment bonus, but his brother, who had no driver's license, took it without permission, wrecked, and totaled it.  His only chance to have the insurance company pay for the car was to cooperate in prosecuting his brother.  Without a car, he had to depend on his friends for a ride which caused more problems.  He was arrested once simply because the "friend" who gave him a ride decided "to smoke a joint."  He lived in a "twilight zone" of alcoholism for many years before he started to get his life together.  He met a wonderful woman to whom he has been married for 30 years and he has three wonderful daughters.  He suffered for 40 years because the things that should have been in place to help him were not available.  The PTSD which resulted from Vietnam "negatively impacted and forever changed the course of his life."  

4.  The applicant also provides copies of a 24 July 2008 letter signed jointly by a certified nurse practitioner and a professional mental health counselor from the Department of Veterans Affairs (VA); a letter from the VA Maryland Health Care System (VAMHCS), dated 28 July 2008; two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge); and a letter from the VA Baltimore Regional Office, dated 14 July 2008 in support of his application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel, in effect, concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.

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 enlisted on 15 May 1967 with a moral waiver for a juvenile offense that resulted in 1 year of probation without a court verdict.  A notation on the enlistment documents state that the applicant's father was unknown to him and that he used his mother's name.
3.  He completed training and was awarded military occupational specialty 13B as a combat engineer. 

4.  The applicant served in Vietnam with C Company, 14th Engineer Battalion (Combat) from 13 January 1968 to 2 January 1969; first, as a tool room keeper and, from 30 September 1968, as a heavy duty truck driver.  He was advanced to private first class (PFC), pay grade E-3 on 5 February 1968 and to specialist four (SP4), pay grade E-4 on 14 August 1968.  He departed Vietnam 6 January 1969. He was discharged on 19 February 1969 for the purpose of immediate reenlistment on 20 February 1969.
5.  The applicant was absent without leave (AWOL) from 1 July to 13 August 1969, and he escaped from custody on 7 September 1969.

6.  On 12 and 19 May 1977, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 by being AWOL from 1 July to 13 August 1969 and from 7 September 1969 to 20 February 1970; and for violation of Article 95 by escaping from lawful custody on 7 September 1969.

7.  On 4 March 1970, 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. 

8.  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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  The separation authority approved the applicant's request for discharge for the good of the service and directed that the applicant be reduced to pay grade E-1 and issued an Undesirable Discharge Certificate.

10.  At a separation physical examination on 3 March 1970, the examining physician noted several complaints including infrequent headaches and 

dizziness, left ear aches, an auto accident, a fight resulting in headaches, 
untreated asthma, varicose veins, worries, deformed toes, and low back pain.  The applicant was found qualified for separation [or retention] with a physical profile of 111111. 

11.  On 17 March 1970, the applicant was separated with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 10.  He had completed 2 years, 3 months, and 3 days total creditable service and had 210 days lost time due to AWOL.  [It is noted that the applicant was separated on temporary records which apparently resulted in the inclusion of his first enlistment on the final DD Form 214.]

12.  On 29 May 1973 the Army Discharge Review Board denied the applicant's appeal to upgrade his discharge.

13.  Army Regulation 635-200 (Personnel Separations) 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.

14.  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.  

15.  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.


16.  The 17 July and 24 July 2008 letters from the VA counselors provide diagnoses of PTSD and major depressive disorder secondary to PTSD.  They report that the applicant was first diagnosed by the VA in 2007.  He receives ongoing treatment.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  Neither the applicant nor counsel has submitted any probative medical evidence to the contrary.

2.  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.

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

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)                                         AR20080014451



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ABCMR Record of Proceedings (cont)                                         AR20080014451



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