IN THE CASE OF:	  

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090014572 


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 a general discharge.

2.  The applicant states that at the time of the incidents he did not realize he was suffering from post-traumatic stress disorder (PTSD), that he was never treated or afforded medical treatment, and that he was not offered proper counseling.  He contends that he served honorably in Vietnam and received the Vietnam Service Medal with two bronze service stars and the Republic of Vietnam Campaign Medal.  Upon returning from Vietnam he started having trouble adjusting back to life in the States.  He points out that he was having financial problems, that he was under stress with a new wife, that his son was living with his mother-in-law due to their financial problems, and that he was transferred from his aviation unit to an armored tank unit.  He wishes he had been offered counseling or had spoken with a chaplain so he could have straightened out his life and finished his enlistment.  All he could think of was that maybe things would be better if he left the service and just went home.  He states that he was young, confused, and under duress.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) for the period ending 23 June 1972 and a charge sheet with related documents 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 was born on 14 April 1950.  He was inducted into the Army of the United States on 16 April 1970 and he was honorably discharged on 22 April 1970 for enlistment in the Regular Army.  He enlisted in the Regular Army on 23 April 1970 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 68E (propeller and rotor mechanic).  He arrived in Vietnam on 20 December 1970.

3.  On 1 November 1971, while in Vietnam, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) for 2 hours on 26 October 1971 and violating a lawful general regulation.  His punishment consisted of a reduction to E-2, a forfeiture of pay, and extra duty.

4.  The applicant was transferred to the United States on 16 December 1971.

5.  The applicant was AWOL on 11 February 1972 and returned to military control on 10 March 1972.  He was AWOL again on 5 April 1972 and returned to military control on 20 April 1972.  On 11 May 1972, charges were preferred against the applicant for the AWOL periods.  Trial by special court-martial was recommended.

6.  On 24 May 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

7.  On 24 May 1972, the applicant underwent a separation physical examination and was found qualified for separation.  He recorded "I am in good health" on his Standard Form  88 (Report of Medical Examination) and Standard Form 93 (Report of Medical History), dated 24 May 1972.  A DA Form 2496 (Disposition Form), dated 24 May 1972, states that a complete review of the applicant's physical and mental examinations failed to reveal any defects which would have contributed to the misconduct of the applicant.  He was found to be physically and mentally fit for duty without profile limitations.

8.  On 12 June 1972, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.

9.  The applicant was discharged with an undesirable discharge on 23 June 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 2 years and 14 days of creditable active service with 44 days of lost time.  His DD Form 214 for the period ending 23 June 1972 shows the Vietnam Service Medal with two bronze service stars and the Republic of Vietnam Campaign Medal with Device (1960) as authorized awards.

10.  On 17 January 1974, the Army Discharge Review Board denied the applicant's request for a general discharge.

11.  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 at any time after the charges have been preferred.  At the time, an undesirable discharge was normally considered appropriate.

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.  Age is not a sufficiently mitigating factor.  The applicant was 20 years old when he enlisted and he successfully completed his training.  In addition, he served 18 months of service prior to his nonjudicial punishment.

2.  Although the applicant contends that he did not realize he was suffering from PTSD at the time of the incidents, there is no evidence to show he was having psychiatric problems in 1972 that interfered with his ability to perform his military duties or that were the underlying cause for the misconduct that led to his discharge.  The medical evidence of record, dated 24 May 1972, states that a complete review of physical and mental examinations failed to reveal any defects which would have contributed to the misconduct of the applicant.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant's record of service included one nonjudicial punishment and 44 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

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)                                         AR20090014572



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ABCMR Record of Proceedings (cont)                                         AR20090014572



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