IN THE CASE OF:	  

		BOARD DATE:	  24 September 2009

		DOCKET NUMBER:  AR20090008118 


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.

2.  The applicant states, in effect, that he was wounded four times while serving in the Republic of Vietnam (RVN) and that he suffered from post traumatic distress disorder (PTSD).  He also states that he was not given proper help for this condition upon return to the United States.  

3.  The applicant submits a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) 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.  After having had prior service, the applicant enlisted in the Regular Army on    1 April 1966.  On 3 April 1967, he was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued shows he had completed 1 year, 5 months, and 14 days of total active service.  

3.  On 4 April 1967, the applicant reenlisted in the RA for 6 years in his previous military occupational specialty (MOS) of 13A (Field Artillery Basic).

4.  The applicant's DA Form 20 (Enlisted Qualification Record) includes an entry in Item 31 (Foreign Service) that shows he served in the RVN from 31 May 1967 to 30 May 1968.  

5.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows he was promoted to private first class (PFC)/E-3 on 26 January 1967 and that this was the highest rank that he held while serving on active duty.  It also shows that he was reduced on four separate occasions and that his final rank was private (PVT)/E-1. 

6.  Item 40 (Wounds) of the applicant's DA Form 20 shows he was wounded in action on three separate occasions while serving in the RVN. 

7.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) of the applicant's DA Form 20 shows he accrued 675 days of lost time.  He was absent without leave (AWOL) on nine separate occasions between 14 September 1968 and 7 September 1971, and he had six separate periods of confinement between 30 November 1968 and 
1 October 1971.

8.  A DA Form 20B (Insert Sheet to DA Form 20B - Record of Court-Martial Conviction) attached to his DA Form 20 shows that on 25 November 1968, a Special Court-Martial (SPCM) found the applicant guilty of violating Articles 86 and 134 of the Uniform Code of Military Justice (UCMJ) by being AWOL from     5 through 9 November 1968 and for being drunk and disorderly on 5 November 1968.  The resultant sentence was confinement at hard labor for 6 months and a forfeiture of $97.00 pay for 
6 months.  

9.  The applicant's DA Form 20B also shows that on 18 April 1969 a SPCM  found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from 8 March through 8 April 1969. The resultant sentence was confinement at hard labor for 6 months, a forfeiture of $95.00 pay for 6 months, and a reduction to PVT/E-1.


10.  The available evidence also show that on 6 April 1970 the applicant accepted nonjudicial punishment (NJP) for being AWOL from 31 March through  1 April 1970.  His punishment for this offense was an oral reprimand. 

11.  The applicant's record does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s separation processing.  However, it does include a DD Form 214 that confirms he was discharged on 5 October 1971, under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  It also shows that he completed 2 years, 7 months, and 22 days of net service this period and he completed 4 years, 1 month, and 6 days of total active service.  This DD Form 214 also shows that he had accrued 675 days of lost time.  

12.  The available record is void of any medical treatment records, or documents that indicate he was ever treated for a disabling medical or mental condition that would have warranted separation processing through medical channels.

13.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge using the DD Form 293 submitted in this case.  However, he exceeded that board's 15-year statute of limitations and as a result his case is being considered by this Board.

14.  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 discharge or a GD is authorized.  However, at the time of the applicant's separation the regulation provided for the issuance of an UD.  

15.  Paragraph 3-7b of Army Regulation 635-200 provides that a 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 contentions that his UD should be upgraded to a GD due to the fact that he was wounded in action four times, that he suffered from PTSD, and that he did not get proper medical treatment were carefully considered.  However, there is no evidence available that shows the applicant suffered from PTSD or a disqualifying mental or physical condition during his period of military service that would have mitigated his misconduct.  

2.  The complete facts and circumstances surrounding the applicant's discharge processing are not available.  However, there is a properly-constituted DD Form 214 available that contains the authority and reason for his discharge and confirms the applicant received an UD.  The DD Form 214 confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  It is signed by the applicant and it shows he accrued 675 days of lost time due to being AWOL and in confinement.  This DD Form 214 also carries with it a presumption of Government regularity in the separation process.

3.  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.  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.

4.  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.

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 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)                                         AR20090008118



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ABCMR Record of Proceedings (cont)                                         AR20090008118


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