IN THE CASE OF:	

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080016103 


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 to fully honorable.

2.  The applicant states that he was not given any counseling or rehabilitation prior to being separated.  In addition, he was not given a physical examination when he was being processed for discharge.  Therefore, his separation was accomplished in violation of the regulations in effect at the time.

3.  The applicant then states that he had distinguished service in combat in Vietnam, and that distinguished service should warrant Department of Veterans Affairs (VA) disability benefits for his Post-Traumatic Stress Disorder (PTSD).

4.  The applicant provides his two separation documents (DD Forms 214); a self-authored statement in which he chronicles his childhood, his experiences in the military, and symptoms he developed after his tour in Vietnam which the applicant believes to be PTSD; a letter from the Vet Center dated 13 May 2008; a letter from the wife of the applicant’s nephew; a letter from his nephew; a letter from a fellow Vietnam War veteran; a letter from a woman the applicant is dating; and a letter from the VA in which the applicant was told he was ineligible for VA benefits because he was AWOL more than 180 days.

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 records show that he was inducted on active duty on 25 July 1969, was awarded the military occupational specialty (MOS) of light weapons infantryman, and was promoted to pay grade E-3.  He was assigned to Vietnam on 17 December 1969 where he served as a rifleman. 

3.  The applicant immediately reenlisted in Vietnam for the MOS of supply specialist on 3 May 1970.  The applicant was then given 30 days reenlistment leave.

4.  On 8 June 1970, while still assigned to Vietnam, the applicant departed absent without leave (AWOL).  He was apprehended in California on 20 January 1971.  He departed AWOL once again on 28 February 1971.  On 18 October 1971 the applicant surrendered to military authorities.

5.  The applicant’s discharge packet is not contained in his records.  However, on 15 November 1971, the applicant was given an undesirable discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.

6.  The applicant’s records do not contain any orders showing that he was given any award or decoration for meritorious service or for valor.

7.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, 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 was normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.  There are no counseling or rehabilitation requirements in chapter 10, other than legal counseling to insure the Soldier making the request for discharge fully understood the ramifications of an undesirable discharge.  However, there was a requirement to give the Soldier a medical examination.
DISCUSSION AND CONCLUSIONS:

1.  Without the applicant’s discharge packet, there must be a presumption of regularity, that what the Army did was correct.  The burden to prove otherwise rests with the applicant.  This includes the requirement for the applicant to be given a physical examination in conjunction with his separation.

2.  Since there are no counseling (other than legal) or rehabilitation required to separate a Soldier for the good of the service, the applicant’s contention that the lack of counseling and rehabilitation invalidates his discharge is not accepted.

3.  The applicant departed AWOL from Vietnam and, when apprehended, departed AWOL again almost immediately.  Such misconduct certainly warranted an undesirable discharge.

4.  While the applicant attributes his AWOL to PTSD, he could have sought treatment from the Army for any symptoms which would now be attributed to PTSD (the diagnosis of PTSD did not exist in 1971).  As such, if he was in fact suffering from PTSD symptoms at the time, it would not constitute a reason for upgrading a properly issued discharge.

5.  The applicant cites his distinguished service in Vietnam as a basis for upgrading his discharge.  In this regard, the applicant has no awards or decorations for meritorious service or valor, and only served 4 months and 21 days in the country of Vietnam.  As such, this contention is not accepted.

6.  The VA awards disability compensation based on its own laws and regulations.  The Board does not have any authority over the VA.

7.  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)                                         AR20080016103





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ABCMR Record of Proceedings (cont)                                         AR20080016103



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