IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090016107 


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 upgrade of his under other than honorable conditions discharge to at least a general, under honorable conditions discharge.

2.  The applicant states the discharge is the result of his post traumatic stress disorder (PTSD) from Vietnam.

3.  The applicant provides a copy of an 8 July 2009 Department of Veterans Affairs (VA) rating decision granting service-connection for PTSD.

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 inducted into the Army of the United States on 24 February 1970.  He completed training and was posted to Vietnam.  His tour of duty there consisted of 1 1/2 months as a light truck driver with the 4th Infantry Division and 4 1/2 months as a heavy truck driver with the 359th Transportation Company.  He was released from active duty on 1 November 1971 with an honorable characterization of service as a specialist four (SP4)/E-4.  He was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.

3.  His DD Form 214 (Report of Separation from Active Duty) lists his awards as the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Army Good Conduct Medal.

4.  On 1 April 1975 the applicant enlisted in the Regular Army in pay grade E-2.  He became a food service specialist and progressed to pay grade E-4.

5.  He was absent without leave (AWOL) from 6 September 1976 until 16 October 1978.  When charges were preferred for that offense, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that, 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  The applicant attached a statement saying that he had joined in 1975 because he could not find a job and had to provide for his wife and child.  He had become a plumber while AWOL and thought plumbing was better than being an Army cook.

8.  The officers in the applicant's chain of command recommended an under other than honorable conditions discharge.

9.  The discharge authority approved the applicant's request and directed the issuance of an under other than honorable conditions discharge.

10.  On 10 January 1979, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  He had completed 1 year, 8 months and 8 days of creditable active service during the period under review and had over 800 days of AWOL.

11.  On 10 June 1981 the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for any AWOL offense of 30 days or more.

13.  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 or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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 states the discharge is the result of his PTSD from Vietnam.

2.  There is no available evidence and the applicant did not provide any evidence that he was suffering any disabling effects from PTSD at the time of the discharge or at the time he went AWOL.  The statement he submitted along with his request for discharge in lieu of trial by court-martial indicates that he had a rational economic basis for his actions.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
4.  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)                                         AR20090016107



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ABCMR Record of Proceedings (cont)                                         AR20090016107



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