IN THE CASE OF:	  

		BOARD DATE:	         10 September 2009

		DOCKET NUMBER:  AR20090006246 


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 (UD) be upgraded to a general discharge (GD), under honorable conditions or an honorable discharge (HD).

2.  The applicant states, in effect, that he had honorable service prior to and during his Republic of Vietnam (RVN) tour.  He indicates that he experienced a lot of mental trauma in the RVN as a military policeman and suffered from Post Traumatic Stress Disorder (PTSD), major depression, and chronic readjustment disorder.  He also indicates he was having marital difficulties and ultimately started using drugs and alcohol to comfort his major depression.  He states that he departed absent without leave (AWOL) and entered into a deserter status or was dropped from the rolls and this formed the basis for his UD in lieu of trial by court martial.

3.  The applicant further states, in effect, that subsequent to his discharge from the Army he volunteered to enter a drug and alcohol program; however, he has since been unable to secure a job.  He states he is homeless, because no one wants to hire him with a UD.  He also states that he has filed a claim with the Department of Veterans Affairs (VA) for his medical conditions and he asks that favorable consideration be given to his request so that he may be eligible for VA medical treatment.


4.  The applicant provides the following documents in support of his application:  Letter of Support, National Personnel Records Center Letter, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 4 (Enlistment Contract - Armed Forces of the United States), and a DA Form 20 (Enlisted Qualification Record).

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 enlisted in the Regular Army and entered active duty on 18 December 1969.  He completed basic combat training at Fort Jackson, South Carolina and advanced individual training (AIT) at Fort Gordon, Georgia.  Upon completion of AIT, he was awarded military occupational specialty 95B (Military Policeman).

3.  The applicant’s DA Form 20 shows that he served in the RVN from 6 June 1970 to 5 June 1971.  It also shows that he earned the following awards during his tenure on active duty:   National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal with Device 1960, Overseas Service Bar, and Expert Marksmanship Qualification Badge with Rifle Bars (M-14 and M-16).

4.  Item 21 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) of the DA Form 20 shows he  accrued lost time during the following six periods for the reasons indicated:       22 May - 1 June 1970 (11 days AWOL); 7 July - 7 August 1971 (33 days   AWOL); 8 August - 19 September 1971 (42 days dropped from the rolls);          20 - 30 September 1971 (11 days confinement); 1 November 1971 - 2 April 1972 (155 days AWOL); and 2 - 23 April 1972 (20 days in confinement).

5.  The applicant's Official Military Personnel File (OMPF) contains Transient Company, United States Army Personnel Center, Unit Order Number 136, dated 3 June 1970, which shows the applicant received non-judicial punishment (NJP) under the provisions Article 15 of the Uniform Code of Military Justice (UCMJ) for misconduct on 3 June 1970.

6.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214, dated 8 June 1972, that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UD Certificate.  He had completed 1 year, 9 months, and 14 days of creditable active military service and he had accrued 251 days of lost time due to being AWOL and in confinement.  

7.  The applicant's record is void of any medical treatment records or other documents that indicate he was treated for a disabling medical or mental condition during his active duty tenure.

8.  On 8 August 1974, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

9.  The applicant provides a physician's statement dated 27 January 2009.  The attending psychiatrist diagnosed the applicant with the following conditions:  PTSD, secondary to combat service in the RVN war; major depression, chronic with psychotic features; alcohol dependency; and poly-substance abuse.

10.  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 GD or an HD if warranted by the member's record, a UD was normally considered appropriate for members separated under these provisions at the time the applicant was separated.

11.  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.

12.  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 record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s service.  This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, and that he received a UD.  This separation document carries with it a presumption of Government regularity in the separation process. 

2.  In connection with such a discharge, the applicant 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.  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. The UD the applicant received was appropriate and appropriate under the regulatory guidance.

3.  The applicant’s contentions that his UD should be upgraded to a GD or HD based on the honorable service that he performed before and during his RVN tour, and due to the trauma that he experienced as a result of his RVN service which was the ultimate cause of his PTSD and the misconduct that led to his UD was carefully considered and found to be insufficient to support upgrading his UD.

4.  The evidence of record confirms that the applicant first departed AWOL on 22 May 1970, received NJP for misconduct on 3 June 1970, and he did not arrive in the RVN until 6 June 1970.  Accordingly, the applicant's disciplinary history began prior to his RVN tour and his record is void of any medical treatment records to show he suffered from a disabling medical or mental condition during his period of active duty service.

5.  Further, the evidence of record confirms the applicant accrued 251 days of lost time due to being AWOL and in confinement which began upon completion of his initial active duty training period.  As a result, his overall record of service clearly did not support the issuance of a GD or HD by the separation authority at the time of discharge, nor does it support an upgrade at this late date.

6.  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 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)                                         AR20090006246



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ABCMR Record of Proceedings (cont)                                         AR20090006246



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