BOARD DATE:	  24 September 2009

		DOCKET NUMBER:  AR20090008226 


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.

2.  The applicant states, in effect, that he returned from the Republic of Vietnam (RVN) not knowing he was suffering from post traumatic stress disorder (PTSD) and he was unable to mentally adjust to military standards and commitments.  He claims his mind was in survival mode and he did not believe he could survive if he returned to his unit.  Therefore, he went absent without leave (AWOL).  He further states his discharge was inequitable because it was based on one isolated incident after 16 months of service with no other adverse actions.

3.  The applicant provides no additional documentation 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 record shows he was inducted into the Army of the United States and entered active duty on 16 June 1971.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist four (SP4)/E-4, on 6 April 1972, and this is the highest rank he attained while serving on active duty.  It also shows that during his tenure on active duty he earned the National Defense Service Medal, Vietnam Service Medal, Bronze Star Medal, RVN Campaign Medal with Device (1960), Combat Infantryman Badge, Marksman Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar.  

4.  Item 44 (Time Lost under Section 972 Title 10, United States Code and Subsequent to Normal Date ETS) of the applicant's DA Form 20 shows he accrued 183 days of lost time over three separate periods between 
12 November 1971 and 6 March 1973.  

5.  The applicant's Official Military Personnel File is void of any medical documents showing he suffered from PTSD or from any other disabling physical or mental condition while serving on active duty.  

6.  On 18 September 1972, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 5 through 14 September 1972.  His punishment for this offense was a reduction to private first class (PFC)/E-3, which was suspended, a forfeiture of $71.00 and 14 days of extra duty and restriction.

7.  On 30 November 1971, the applicant accepted NJP for being AWOL from 
12 through 29 November 1971.  His punishment for this offense was a forfeiture of $50.00. 

8.  The applicant's record shows he served in the Republic of Vietnam during the period 9 December 1971 through 22 June 1972.

9.  On 28 March 1973, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 2 October 1972 through on or about 7 March 1973.

10.  On 19 March 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UD, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

11.  In his request for discharge the applicant acknowledged that he understood if his discharge request was approved, 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), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UD and elected to submit a statement in his own behalf.  The applicant's record does not contain his statement.  

12.  The separation authority approved the applicant’s request for discharge and directed that he receive an UD.  On 19 April 1973, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant shows he was separated under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service – in lieu of court-martial, and that he received an UD.  It further shows that at the time he had completed 1 year, 4 months, and 1 day of creditable active service during the period covered by the DD Form 214 and that he had accrued 183 days of time lost due to being AWOL.  

13.  On 20 February 1975, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable, and it voted to deny his request for a change to the characterization of his service and/or to the reason for his separation.  

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 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.  The separation authority can authorize a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.  At the time of the applicant’s discharge, the regulation provided for the issuance of an UD.    

15.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, 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 HD.  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 he suffered from PTSD upon his return from Vietnam and he could not adjust to military standards, therefore, he went AWOL was carefully considered.  However, the evidence of record reveals a significant disciplinary history that includes his accrual of 183 days of time lost due to being AWOL prior to his assignment to the RVN.  As a result there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge in order to avoid a trial by court-martial which could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UD, which was consistent with regulatory policy in effect at the time.  

3.  The applicant’s discharge accurately reflects his overall record of service.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

4.  The available evidence does not indicate that he suffered from a medical or mental condition to include PTSD while he was serving on active duty.

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)                                         AR20090008226



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ABCMR Record of Proceedings (cont)                                         AR20090008226



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