IN THE CASE OF:	

		BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090015129 


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, the widow of a deceased former service member (FSM), requests that her late husband's undesirable discharge be upgraded to an honorable or a general discharge. 

2.  The applicant states, in effect, that the FSM was a Vietnam veteran with Post Traumatic Stress Disorder (PTSD) who acted under the influence of the diagnosis rather than as a rational human being.  

3.  The applicant provides the FSM's death certificate; letters, dated December 2002 and 25 January 1998; a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States), dated 16 April 2002; copies of DD Forms 214 (Report of Transfer or Discharge), dated 15 October 1970 and 24 January 1974; an application for survivors benefits; and numerous character reference letters in support of her 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 FSM enlisted in the Regular Army on 16 February 1970 for a period of 
3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11D (armor reconnaissance specialist).  On 15 October 1970, he was honorably discharged for immediate reenlistment.  The FSM reenlisted on 16 October 1970 for a period of 6 years.  He served in Vietnam from 19 August 1971 to 20 March 1972.

3.  On 3 November 1972, nonjudicial punishment was imposed against the FSM for being absent without leave (AWOL) from 10 October 1972 to 11 October 1972.  His punishment consisted of a forfeiture of pay and restriction.

4.  On 30 March 1973, nonjudicial punishment was imposed against the FSM for violating a general regulation.  His punishment consisted of a forfeiture of pay and extra duty.

5.  On 30 May 1973, nonjudicial punishment was imposed against the FSM for failing to go to his appointed place of duty at the time prescribed.  His punishment consisted of a reduction to E-3, restriction, and extra duty.

6.  On 9 July 1973, nonjudicial punishment was imposed against the FSM for violating a lawful general regulation.  His punishment consisted of a forfeiture of pay.

7.  The FSM was AWOL on 14 August 1973 and returned to military control on 
8 January 1974.  On 10 January 1974, charges were preferred against the FSM for the AWOL period.  Trial by special court-martial was recommended.

8.  On 11 January 1974, the FSM underwent a mental status evaluation and was found mentally responsible.

9.  On 11 January 1974, the FSM underwent a separation physical examination and was found qualified for separation.  He also reported he was in "Good Helth [sic]" in item 8 (Statement of Examinee's Present Health and Medications Currently Used) on his Standard Form 93 (Report of Medical History).

10.  On 14 January 1974, after consulting with counsel, the FSM 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 to submit a statement in his own behalf.  In summary, he stated that he had six nonjudicial punishments and he got mad at the undue harassment and not getting paid so he went AWOL.  He stated it would be better if he were discharged.    

11.  On 22 January 1974, the separation authority approved the FSM's request for discharge and directed that he be furnished an undesirable discharge.

12.  The FSM was discharged with an undesirable discharge on 24 January 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 3 years, 5 months, and 22 days of creditable active service with 169 days of lost time.  

13.  The applicant provided numerous character reference letters on behalf of the FSM from friends, family members, and law enforcement officials.  She provided an undated letter from a doctor who treated the FSM for anxiety and depression which he felt was PTSD secondary to the Vietnam era.  

14.  On 7 March 1984, the Army Discharge Review Board denied the FSM's request for a general discharge.

15.  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.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

17.  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 contention that the FSM was a Vietnam veteran with PTSD who acted under the influence of the diagnosis rather than as a rational human being was noted.  However, there is no evidence to show he was having psychiatric problems in 1974 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.  The medical evidence of record, dated 11 January 1974, shows he was found mentally responsible and qualified for separation, and he reported that he was in good health.
 
2.  The character reference letters submitted on behalf of the FSM failed to show that his discharge was unjust and should be upgraded.

3.  The FSM'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.  

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

5.  The FSM's record of service during his last enlistment included four nonjudicial punishments and 169 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the FSM's record of service is insufficiently meritorious to warrant a general or an honorable 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)                                         AR20090015129



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ABCMR Record of Proceedings (cont)                                         AR20090015129



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