DOCKET NUMBER:  AR20090005212 


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 an honorable discharge.

2.  The applicant states that he honorably served his first enlistment which included a tour in Vietnam for which he was awarded two Combat Infantryman Badges (CIB).  He continues, in effect, that when he left Vietnam he started having problems due to the things he was exposed to in combat in Vietnam and he turned to alcohol and drugs to deal with those thoughts.  After he left the Army, he used drugs heavily.  He thought he had straightened up when he reenlisted in 1973, but he just couldn't adjust to the military anymore, thinking about the horrors of Vietnam, and went absent without leave (AWOL) and was given an undesirable discharge instead of help.  The applicant concludes that he now suffers from post-traumatic stress disorder (PTSD) and believes that he suffered from PTSD when he departed AWOL.

3.  The applicant provides excerpts from his military records.

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 into the Army of the United States and entered active duty on 8 February 1967, was awarded the military occupational specialty of indirect fire crewman, and served in Vietnam as a rifleman assigned to an infantry unit from 13 July 1967 to 24 January 1968.  He was evacuated from Vietnam prior to the completion of his tour because he broke his wrist when he fell while playing volleyball.

3.  The applicant was honorably released from active duty on 7 February 1969.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was awarded the CIB.

4.  The applicant enlisted with prior service on 11 September 1973.  He went AWOL on 13 May 1974.  He returned to military control on 28 May 1974 and again went AWOL on 9 August 1974.  The applicant was apprehended by civilian authorities on 18 March 1975 and charged with armed robbery.  On 20 August 1975, the applicant was transferred to Fort Stewart, GA.

5.  On 21 August 1975, court-martial charges were preferred against the applicant for being AWOL from 9 August 1974 to 20 August 1975.

6.  On 26 August 1975, the applicant was given a separation physical examination in which he was determined medically qualified for retention without any physical profile restrictions.

7.  The applicant's discharge packet is not contained in his military records.  However, on 3 October 1975 the applicant was discharged at his own request for the good of the service in lieu of trial by court-martial.  He had 11 months and 13 days of creditable service during that enlistment and 400 days of lost time.  His service was characterized as under other than honorable conditions and he was furnished an Undesirable Discharge Certificate.

8.  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.

9.  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.

10.  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 served as an infantryman assigned to an infantry unit in Vietnam for about 6 months, at which time he was evacuated because he broke his wrist while playing volleyball.

2.  There is nothing in the applicant's records to support his contention that he was suffering from PTSD or any other mental disorder while he was on active duty.  To the contrary, he was determined medically qualified for retention without any physical profile restrictions when he was in the process of being discharged.

3.  The applicant had two lengthy periods of AWOL totaling 400 days of time lost and the applicant only returned to military control when he was arrested by civilian authorities for armed robbery.

4.  The gravity of the applicant's offenses certainly warranted an undesirable discharge and there is no evidence or indication of any circumstances which would mitigate that discharge.

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)                                         AR20090005212



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ABCMR Record of Proceedings (cont)                                         AR20090005212



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