IN THE CASE OF:	  

		BOARD DATE:	        12 NOVEMBER 2008

		DOCKET NUMBER:  AR20080015267 


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 by reason of physical disability or retirement. 

2.  The applicant states, in effect, that at the time, he was unaware of the consequences of a chapter 10 discharge because it was not fully explained to him and he was under duress to sign it at the time.  The applicant goes on to state that after he reported that his commander shot himself in the foot his commander told him he would make his life miserable and that he should not turn his back on him or he could be killed by friendly.  He also states that he suffered a head injury in an automobile accident and could not handle the combat fatigue and stress of Vietnam.  He suffers from exposure to Agent Orange and post-traumatic stress disorder (PTSD) and that his PTSD was not properly diagnosed during his medical assessment.

3.  The applicant provides a copy of his Report of Medical History and a copy of a Psychological Summary dated 21 January 2001.

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 was born on 29 December 1947 and was single when he enlisted in Columbus, Ohio on 29 December 1967 for a period of 3 years and training as a military policeman (MP).  He completed his basic combat training at Fort Jackson, South Carolina and his advanced individual training (AIT) at Fort Gordon, Georgia.  Upon completion of his AIT he was transferred to West Point, New York for duty as a MP.  He was advanced to the pay grade of E-3 on 8 July 1968.

3.  On 7 August 1968, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2.

4.  On 4 February 1969, NJP was imposed against the applicant for being absent without leave (AWOL) from 31 January to 2 February 1969.  His punishment consisted of a reduction to the pay grade of E-1 and restriction for 14 days.

5.  On 22 March 1969, he was transferred to Vietnam for assignment to the 545th MP Company, 1st Cavalry Division.

6.  On 19 July 1969, NJP was imposed against him for failure to go to his place of duty as a guard at the Division tactical operations center (TOC).  His punishment consisted of a forfeiture of pay and extra duty.

7.  On 25 September 1969, NJP was imposed against the applicant for disobeying a lawful order from a superior commissioned officer (a captain).  His punishment consisted of a forfeiture of pay.

8.  On 27 November 1969, the applicant submitted a request for a 6-month foreign service tour extension and a 30-day special leave.  His request was approved and his tour was extended to 21 September 1970.

9.  The applicant departed on his 30-day special leave in February 1970 with a report date back to his unit on 20 March 1970; however, he failed to report back to his unit as ordered and was reported as being AWOL effective 20 March 1970.  He remained absent in desertion until he surrendered to military authorities at Fort Knox, Kentucky on 2 January 1971, where charges were preferred against him for the AWOL offense.
10.  However, he again went AWOL on 18 January 1971 and remained absent until he was again returned to military control at Fort Knox on 21 March 1971 and charges were again preferred against him.

11.  He again went AWOL on 15 April 1971 and remained absent until he was returned to military control at Fort Knox on 20 October 1971 and charges were again preferred against him.

12.  On 8 December 1971, he underwent a mental status evaluation and was determined to be mentally responsible, able to distinguisg right from wrong, able to adhere to the right and that he had the mental capacity to understand and participate in board proceedings.

13.  He also underwent a medical examination and indicated that he had a head injury.  The physician noted a six inch skin graft scar on his forehead.  His medical records indicate that he had an automobile accident in 1966 and had two plastic procedures to his forehead.  Upon neurological examination and testing at the Fort Knox surgical clinic, his condition was deemed to be normal.

14.  On 9 November 1971, after consulting with his defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

15.  The appropriate authority (a lieutenant general) approved the applicant’s request for discharge on 3 January 1972 and directed that he be furnished with an Undesirable Discharge Certificate. 

16.  Accordingly, he was discharged under other than honorable conditions on 18 January 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 4 years and 20 days of total active service and had 666 days of lost time due to AWOL and confinement.

17.  On 23 April 1974, officials at the Florida Parole and Probation Commission requested copies of the applicant's official records for a pre-sentence investigation for the Sarasota County District Court.

18.  On 17 April 1979, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He stated at that time that his discharge should be upgraded because up until the time he was discharged, his record of service was good and that he went AWOL when he was placed on orders to go back to Vietnam for a second tour.  He also stated that he had not received legal counsel before his discharge and that he was unaware of the consequences of an undesirable discharge.  The ADRB determined that under the circumstances, his discharge was both proper and equitable and voted unanimously to deny his request on 5 January 1981.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.          

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 courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he chose to voluntarily request a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

4.  The applicant's contentions have been considered; however, not only are they not supported by the evidence of record, they are not sufficiently mitigating to warrant relief when compared to his extensive repeated absences, his overall record of service and the fact that the applicant offered no mitigating circumstances at the time to explain his misconduct.  Accordingly, his service simply does not rise to the level of even a general discharge.
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.




      _______ _ 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)                                         AR20080015267



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ABCMR Record of Proceedings (cont)                                         AR20080015267



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