IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090014455 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was suffering from post-traumatic stress disorder (PTSD) at the time of his separation.

3.  The applicant provides a letter, dated 26 May 2005, from the Department of Veterans Affairs (VA) as evidence 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 enlisted in the Regular Army on 18 January 1967 for a 2-year period of service.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) on 17 January 1969 to complete his remaining statutory Reserve component obligation.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued on this date shows his 2 years of creditable service during this period.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), item 31 (Foreign Service), shows he was stationed in U.S. Army Pacific-Korea from 15 June 1967 to 16 July 1968.

4.  He again enlisted in the Regular Army on 3 May 1971.  He was assigned to the 902nd Engineer Company (Float Bridge) at Fort Belvoir, Virginia.

5.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 13 May 1967 for disorderly conduct and on 1 December 1971 for being absent without authority (AWOL) from 30 October 1971 to 27 November 1971.

6.  The applicant was reported AWOL for a second period on 3 April 1972 and returned to military control on 20 August 1972.  He was AWOL from the Fort Dix, New Jersey, Personnel Confinement Facility for a third period on 5 September 1972.

7.  On 29 January 1973, the applicant was confined to the St. Lucie County Jail at Fort Pierce, Florida, on a felony charge.  He was released by the civil authorities on 8 March 1973 and returned to military control at Fort Gordon, Georgia.

8.  On 19 March 1973, the applicant signed his voluntary request for discharge for the good of the service indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

9.  On 20 April 1973, the applicant's commander recommended approval of the applicant's request for discharge for the good of the service and that he be furnished an Undesirable Discharge Certificate.

10.  The applicant's complete separation packet pertaining to his discharge is not available for review.  However, his records contain a duly constituted DD Form 214 which shows that on 10 May 1973 the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, by reason of administrative discharge - discharge for the good of the service.  He had completed 1 year and 16 days of creditable active service during this enlistment period and had 5 years, 4 months, and 1 day of total active service with 352 days of lost time.

11.  The PTSD Program Director, a medical doctor, from the VA in Miami, Florida, stated the applicant was diagnosed with and was being treated for combat-related chronic PTSD in an inpatient residential rehabilitation program.  In addition, the medical doctor stated the applicant was diagnosed with major depression, hypertension, generalized osteoarthritis, and chronic pain.

12.  There is no record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

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

15.  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.  Based on the evidence of record, the applicant was separated for the good of the service for repeated AWOL periods totaling 352 days of lost time during his second enlistment period.

2.  Although the applicant's complete separation packet was not available for the Board's review, there is evidence to show he voluntarily requested discharge under the provisions of Army Regulation 632-200, chapter 10, for the good of the service - conduct triable by court-martial.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

3.  While the applicant has been diagnosed and is in treatment for PTSD by the VA, this in and of itself is not grounds to upgrade a properly executed discharge.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  The type of discharge and the reason for separation are appropriate considering the known facts of the case.  Therefore, there is no basis for warranting an upgrade of the applicant's under other than honorable conditions discharge to either a general under honorable conditions or an honorable discharge.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

5.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's other than honorable discharge characterization of service.



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)                                         AR20090014455



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ABCMR Record of Proceedings (cont)                                         AR20090014455



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