IN THE CASE OF:	

		BOARD DATE:	21 July 2009  

		DOCKET NUMBER:  AR20090002859 


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 under other than honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that because he did not receive treatment for his mental problems, he had to leave the Army.  He also indicates that he joined the Army versus being drafted, that he volunteered to go to Vietnam, and that he was a good Soldier with the exception of one incident.  He indicates he served his country honorably, which warrants an upgrade of his UOTHC discharge to an honorable discharge (HD) at this time.  He further states that he has lived the majority of his life without the proper care for post traumatic distress disorder (PTSD) and he needs the care from a facility that understands.

3.  The applicant provides in support of his application a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), an HD Certificate dated 19 June 1969, an FD-353 (Personal Identification [fingerprint card]), a DD Form 214 (Certificate of Release or Discharge from Active Duty), 2 third-party character references, 2 doctor's statements, and a self-authored letter to a Member of Congress, dated              30 September 2004.

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 are not available to the Board.  This case is being considered using the applicant’s DD Form 214 and the documents he submitted with his application.

3.  The applicant's DD Form 214 shows he enlisted in the Regular Army (RA) and entered active duty on 20 June 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 13B (Field Artillery Crewman).

4.  Item 12 (Foreign Service) shows he completed 1 year of foreign service and Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the National Defense Service Medal, Vietnam Service Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar [M-16] during his active duty tenure.  

5.  The applicant's DD Form 214 confirms he was discharged on 17 September 1986 under the provision of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of trial by court martial.  It also shows that he completed 
1 year, 7 months, and 3 days of creditable active military service and that he accrued about 15 years and 8 months of time lost during the period 17 December 1970 to 11 August 1986.

6.  The applicant provides two doctor's statements, dated 6 December 2007 and 25 August 2008, respectively.  Both indicate the applicant has various symptoms of PTSD.  He also provides two character reference statements from individuals who indicate he is a good friend and neighbor, and that he is a caring, trustworthy, and an upstanding citizen and family man, who deserves benefits due him.

7.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

8.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.  Paragraph 3-7b provides that a general discharge (GD) 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 contention that his discharge should be upgraded because it was based on one isolated incident was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The character references submitted by the applicant that attest to his current good character are noteworthy; and the fact he now suffers from a PTSD, as indicated in the doctor's statements he provides, is unfortunate.  However, these factors are not sufficiently mitigating to excuse the applicant's nearly 16 years of time lost due to unauthorized absence.  

3.  The complete facts and circumstances surrounding the applicant's discharge processing are not on file.  However, there is a properly constituted DD Form 214 on file that contains the authority and reason for his discharge.  This document confirms the applicant was discharged for the good of the service - in lieu of trial 

by court martial after accruing nearly 16 years of lost time from 17 December 1970 to 11 August 1986.  This DD Form 214 carries with it a presumption of Government regularity in the separation process.

4.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance, and his overall record of service was not sufficiently meritorious to support the separation authority issuing a GD or HD at the time of discharge, nor does it support an upgrade now.  Absent any evidence of error or injustice related to the applicant's discharge processing, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

7.  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.



      __________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)                                         AR20090002859



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ABCMR Record of Proceedings (cont)                                         AR20090002859



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