IN THE CASE OF:	

		BOARD DATE:	 23 March 2010 

		DOCKET NUMBER:  AR20090016881 


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 under other than honorable conditions discharge be upgraded, that the narrative reason for separation be changed, and that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he entered his second period of active service on 4 October 1969. 

2.  The applicant states, in effect, that he suffers from post-traumatic stress disorder.  At the time he went absent without leave (AWOL) he did not know he was suffering from this condition.  He states he was issued an honorable discharge prior to his second enlistment.  Additionally, he states his DD Form 214 for his second enlistment period shows the wrong entry date.  His correct entry date is 4 October 1969.  

3.  The applicant provides the following documents in support of his application:

	a.  a DD Form 214 with a separation date of 3 October 1969.

	b.  a second DD Form 214 with a separation date of 9 November 1984.

	c.  a character reference letter from a family member.

	d.  a letter from the Memorial Regional Center for Behavioral Health-Outpatient Services, dated 28 July 2008.

	e.  a letter from the Miami Rescue Mission of Broward, FL Outreach Centers, dated 27 July 1969.

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.  On 23 April 1968, the applicant enlisted in the Regular Army for 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was honorably discharged on 3 October 1969 for immediate reenlistment.  He was issued a DD Form 214 for his first enlistment period showing his dates of service were from 23 April 1968 to 3 October 1969.

3.  On 4 October 1969, the applicant reenlisted.  He served in the Republic of Vietnam from 8 April 1969 to 8 December 1970.  He was awarded the Bronze Star Medal, the Army Commendation Medal, and the Air Medal.  All three awards were for meritorious achievement during combat operations. 

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following three UCMJ violations: 

	a.  being absent without leave (AWOL) from on or about 1400 hours on 18 October to 0800 hours on 19 October 1970.  

	b.  failing to follow or obey lawful orders.

	c.  misappropriating government property. 

5.  On 9 December 1970, the applicant left his unit in the Republic of Vietnam in an AWOL status.  More than 10 years later, on 22 April 1984, he voluntarily surrendered to military authorities.
6.  The applicant's separation-processing packet and the complete facts and circumstances pertaining to his discharge are not available for review.  However, his records contain a duly constituted DD Form 214 that was issued on 
9 November 1984.  This DD Form 214, shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of court-martial.  He completed 3 years, 2 months, and 3 days of creditable active service.  He had 3,788 days of lost time from 9 December 1970-22 April 1981 after to his normal expiration of term of service date.  He also had 135 days of lost time under the provisions of Title 10, U.S. Code, section 972.  This DD Form 214 also shows in item 12a (Dated Entered Active Duty), 23 April 1968.

7.  Records show the applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

8.  No medical records were available for review.

9.  The applicant provided three letters to support his application:

	a.  A letter, dated 28 July 2009, from the Memorial Regional Center for Behavioral Health stating the applicant was in their intensive outpatient program receiving treatment 5 days a week.  The author writes the applicant's depression was improving with medication management and that he was attending daily Alcoholics Anonymous meetings demonstrating that he was motivated to understand his own behaviors.

	b.  A letter, dated 27 July 2009, from the Broward County, Outreach Centers stating the applicant received treatment for post-traumatic stress disorder and depression during four separate periods from 2004 to 2009.  He was cooperative and willing to complete all assignments, attend required classes, and participate in individual counseling.

	c.  A character reference letter from a family member attesting to the change in the applicant's behavior after his tour of duty in the Republic of Vietnam.  The author states the applicant suffers from nightmares and other sleep disturbances.  He is married and he raised his children while struggling with emotional problems due to his war experiences.  She concludes by stating the applicant's discharge should be upgraded.




10.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part that a member who had committed an offense or offenses for which the authorized punishment included 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 request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.  

	b.  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.

	c.  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.
	
	d.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	e.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  




DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's separation packet was not available for review, in order for him to be discharged under the provisions of Army Regulation 635-200, chapter 10, charges would have been preferred against him for his extended period of AWOL and punishment could include a punitive discharge.  The applicant would have been afforded the opportunity to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offense(s) for which he was charged, and he would have acknowledged that he understood he could receive a discharge under other than honorable conditions.

2.  The applicant did not submit any evidence to show he was diagnosed with post-traumatic stress disorder while in an active duty status. 

3.  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 facts of the case.  Therefore, the applicant has established no basis for an upgrade of his under other than honorable conditions discharge to either a general discharge, 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 this requirement.

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

6.  However, the applicant's contention that his second DD Form 214 that was issued on 9 November 1984 shows an incorrect entry date has merit.  The applicant received a DD Form 214 for his first period of service ending on 3 October 1969.  He executed a new enlistment contract on 4 October 1969 entering his second enlistment period.

7.  Therefore, the applicant's second DD Form 214 with a separation date of 9 November 1984 should be corrected to show he entered his second period of active service on 4 October 1969. 





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from his 9 November 1984 DD Form 214, item 12a, the entry 23 April 1968 and adding 4 October 1969.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge and his narrative reason for separation. 




      _______ _   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)                                         AR20090016881



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ABCMR Record of Proceedings (cont)                                         AR20090016881



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