DOCKET NUMBER:  AR20090002256 


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, an upgrade of his undesirable discharge (UD). 

2.  The applicant states, in effect, that his UD should be upgraded based on his two prior honorable discharges (HDs) and because he suffers from a Post Traumatic Stress Disorder (PTSD).  

3.  The applicant provides a self authored statement, Department of Veterans Affairs (VA) letter, and DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his application.

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 personnel records show he was initially inducted into the Army of the United States and entered active duty on 8 November 1966.  He served in this status until he was honorably discharged for the purpose of enlistment in the Regular Army (RA) on 30 July 1967.  The DD Form 214 he was issued for this period of service shows he completed 8 months and 23 days of active military service. 

3.  On 31 July 1967, the applicant enlisted in the RA and remained serving on active duty in this status.  He continued to serve until 30 July 1970, at which time he was honorably released from active duty (REFRAD) at the expiration of his term of service (ETS).  The DD Form 214 issued at that time shows he completed 3 years of service for the period of enlistment and a total of 3 years, 8 months, and 23 days of active military service as of that date.  

4.  On 17 February 1971, the applicant reenlisted in the RA and reentered active duty.  His DA Form 20 (Enlisted Qualification Record) shows he held and served in military occupational specialty (MOS) 11B (Infantryman) and item 33 (Appointments & Reductions) shows he was promoted to sergeant (SGT) on 
23 January 1970, and this is the highest rank he held while serving on active duty.  It also shows that he was reduced to the specialist four (SP4) on 6 March 1973.

5.  Item 9 (Awards and Decorations) of the applicant’s DA Form 20 shows he earned the following awards during his tenure on active duty:   National Defense Service Medal, RVN Campaign Medal with Device 1960, Vietnam Service Medal, Army Good Conduct Medal, Ranger Tab, Expert Marksmanship Qualification Badge with Rifle (M-16) Bar and Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar.  Item 31 (Foreign Service) includes an entry which shows he served in the Republic of Vietnam (RVN) from 1 October 1967 to 
24 September 1968.

6.  The applicant’s military record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  
6 March 1973, for offering violence against his superior commissioned officer, for being disrespectful towards his superior noncommissioned officer, and for assaulting his first sergeant; and 1 April 1970, for assaulting a military police officer by striking him in the chest with his fist.

7.  On 27 April 1973, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating the following Articles of the UCMJ by committing the offenses indicated:  Article 90 (2 specifications) – by striking two superior commissioned officers in the face with his fist; and
Article 92 - by disobeying a lawful order.  
8.  On 14 May 1973, 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 UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.

9.  In his request for discharge, he acknowledged his understanding that 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 (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UD and indicated he would submit a statement on his own behalf.

10.  On 31 May 1973, the applicant’s commanding officer, a colonel, submitted a letter regarding the applicant’s request to obtain and submit a letter from his Psychiatrist at the Department of Psychiatry, 97th General Hospital, which he could submit in his own behalf with his discharge request.  The applicant’s commander indicated that many attempts had been made through the Staff Judge Advocate (SJA) to obtain such a letter; however, these attempts had failed.  

11.  On 8 June 1973, the separation authority approved the applicant’s request for discharge and directed that he receive an UD under the provisions of chapter 10, Army Regulation 635-200.  On 11 June, the Acting Assistant, Adjutant General confirmed the separation authority’s approval and further directed action be initiated to secure the proper medical clearance for the applicant’s discharge.

12.  On 14 June 1973, the applicant underwent a mental status evaluation.  The results of this evaluation showed that the applicant's behavior and thought content were normal, he was fully alert and oriented, his mood was level, his thinking process was clear, and his memory was good.  The examining physician further determined the applicant had no signs of significant mental illness; that he was able to distinguish right from wrong and to adhere to the right; that he was mentally responsible; that he met retention requirements; and that he had the mental capacity to understand and participate in separation proceedings.

13.  On 18 June 1973, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service.  The DD Form 214 he was issued at the time confirms he completed a total of 6 years and 25 days of creditable active military service and that he received an UD.

14.  The applicant's record is void of any medical treatment records, or other documents that indicate he was ever treated for a disabling medical or mental condition that would have warranted his separation processing through medical channels during his active duty tenure.

15.  On 24 November 1981, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board (ADRB) concluded the applicant’s discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.

16.  The applicant provides a VA Letter which includes a Discharge Summary that shows he attributes his homelessness and unemployment to his stress and PTSD.  The “Past Psychiatric History” includes an entry which shows he has been receiving medical treatment for PTSD since the 1990s.

17.  Army Regulation 635-200 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.  Although the separation authority may authorize a general, under honorable conditions discharge (GD) or HD, if warranted by the member’s record of service, an under other than honorable conditions (UOTHC) discharge is normally considered appropriate for members separated under these provisions.  At the time of the applicant's discharge, the issuance of an UD was authorized.

18.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his UD is inequitable and should be upgraded based on his overall record of service and because he suffers from a PTSD were carefully considered.  However, the evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. 

2.  Given the applicant's extensive disciplinary history during the period of enlistment under review, his overall record of service for this period clearly did not support the issue of a GD or HD by the separation authority at the time of his discharge, and does not support an upgrade at this late date.  

3.  Further, the applicant’s record is void of any medical treatment records indicating he suffered from a physically or mentally disqualifying condition that would have contributed to the misconduct that resulted in his discharge, and he has failed to provide independent evidence that the PTSD he now claims to suffer from significantly contributed to or was a mitigating factor in the misconduct that resulted in his discharge.  The mental status examination he underwent at the time confirmed he was not suffering from a disabling mental condition that would have supported his separation processing through medical channels and that he was fully competent to participate in the separation process.  

4.  In addition, the applicant’s prior honorable periods of active duty service are fully recognized and documented in the DD Forms 214 he was issued for these periods of service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief. 

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 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)                                         AR20090002256



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ABCMR Record of Proceedings (cont)                                         AR20090002256


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