IN THE CASE OF:	

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090017124 


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, an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states, in effect, he believes the characterization of his discharge to be unjust.  He adds that he left his unit in an absent without leave (AWOL) status after Soldiers in his unit threatened his life because he reported their drug use.  He states:

	a.  His father served during World War II and has a service-connected disability.

   b.  He attempted to enlist in the U.S. Air Force, U.S. Navy, U.S. Marine Corps, and U.S. Coast Guard, but he was not successful due to a medical issue with his ankles.

	c.  He enlisted in the U.S. Army for military police training, but he was sent to Fort Gordon, Georgia, for infantry training.  He enjoyed infantry training and volunteered for airborne training.  However, after a few weeks, his ankles were too bad to continue and he was dropped from the training.

   d.  He was sent to Vietnam and spent the first 3 weeks on body bag and sand bag duty.  He was then assigned to the 2nd Battalion, 27th Infantry (Wolf Hounds), and began performing search and destroy missions and night ambush patrols.  He recalls seeing his very first dead body and getting sick; the body was missing an arm and a leg.
   e.  After about a month, he was invited to another "hooch."  He witnessed other Soldiers using liquid opium, snorting heroin, smoking marijuana, and drinking whiskey.  He declined their offers to participate.

   f.  About a month later while on a mission, a fellow Soldier had his foot blown off.  The medic ordered someone to pick up the Soldier's boot, which the applicant did, while the other Soldiers stood around smoking marijuana.
   
   g.  He realized the other Soldiers used drugs to escape the reality of the dangers around them.  He reported what he witnessed to his lieutenant, but the lieutenant merely dismissed the Soldiers' actions.  He was threatened by the other Soldiers and told not to tell anyone about the drugs and to mind his own business.
   
   h.  While on a patrol, two Soldiers were laughing and had their weapons pointed at him.  He reported the incident to his company commander and requested reassignment to another unit.  His commander told him the only way to handle the matter was to reenlist for another unit or military occupational specialty (MOS).  He reenlisted for 6 years and returned to the United States on 30 days leave.
   
   i.  He waited for orders at Fort Riley, Kansas, and was then ordered to return to his former unit in Vietnam.  He explained the situation in his old unit to officials at Fort Riley, but they were not helpful.
   
   j.  He did not have an issue with returning to Vietnam.  However, he decided that the Army had lied to him for the last time and he was afraid to return to his former unit.  Therefore, he went AWOL.  He turned himself in at Selfridge Air Base, Michigan.
   
   k.  He has gone through two marriages and lost his family.  He has a bad heart, and he suffers from post-traumatic stress disorder (PTSD).

3.  The applicant provides four letters 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 (RA) for a period of 3 years on
30 June 1969.  Upon completion of training he was awarded MOS 11B (Light Weapons Infantryman).  He was:

   a.  Disqualified from airborne training on 14 December 1969.

   b.  Assigned to the Republic of Vietnam (RVN) on 11 January 1970.

	c.  Assigned to Company C, 2nd Battalion, 27th Infantry, 25th Infantry Division (RVN) on 22 January 1970.

3.  He was honorably discharged on 19 March 1970 to immediately reenlist in the RA.  At the time he had completed 8 months and 20 days of net active service of which 2 months and 9 days were foreign service.

4.  The applicant reenlisted in the RA for a period of 3 years on 20 March 1970 for Army Career Group (ACG) 71 (Administration) and:

	a.  Orders authorized him 30 days ordinary leave in the Continental United States (CONUS) beginning 31 March 1970.

	b.  Headquarters, 25th Infantry Division (RVN), Special Orders Number 80, dated 21 March 1970, reassigned the applicant to the 537th Personnel Service Company (RVN) with a reporting date of 9 May 1970.  The special instructions show he was reassigned for duty and training in ACG 71 for further assignment as the commanding officer directed.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 33 (Appointments and Reductions) he was:
   
* promoted to specialist four (E-4) on 18 March 1970
* reduced to private first class (E-3) on 10 June 1970
* reduced to private (E-1) on 9 April 1971



   b.  item 44 (Time Lost) he was AWOL for:
   
* 32 days from 30 April through 31 May 1970
* 23 days from 8 July through 30 July 1970
* 135 days from 1 September 1970 through 13 January 1971

6.  On 1 February 1971, charges were preferred against the applicant for being AWOL from his unit from 1 September 1970 to 14 January 1971.

7.  On 1 March 1971, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).

a. The applicant's request for discharge states:

* he had not been subject to coercion with respect to his request for discharge
* he was afforded the opportunity to consult with counsel
* he was advised he may be discharged under other than honorable conditions
* that he may be deprived of many or all Army benefits
* that he may be ineligible for many or all benefits administered by the Veterans Administration
* that he may be deprived of his rights and benefits as a veteran under both Federal and State laws
* that he may expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge
* that he may submit any statements he desired in his own behalf which would accompany his request for discharge

   b.  The applicant elected not to provide any statements in his own behalf.

	c.  The immediate and intermediate commanders recommended approval of the applicant's request with an Undesirable Discharge Certificate.

8.  On 9 April 1971, the separation authority approved the applicant's request for discharge under Army Regulation 635-200, chapter 10.  It was also directed that the applicant be issued an Undesirable Discharge Certificate.



9.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was discharged on 16 April 1971 in accordance with the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  At the time he had completed 6 months and 17 days of net active service during the period of service under review and he had 190 days of lost time.

10.  On 2 September 1977, the applicant applied to the Department of Defense, Discharge Review Board (Special), for an upgrade of his discharge:

	a.  He stated that he saw one of the men in his unit have his face blown off.  It affected him and he reenlisted to get out of the infantry.  He returned to the United States on reenlistment leave (30 days) with orders to return to his infantry unit in the RVN.  He contended that the Army did not honor his reenlistment contract.

   b.  The board found the applicant did not meet any of the Special Discharge Review Board criteria.

   c.  After consideration of the applicant's military records and all other available evidence, the board determined the applicant's discharge was proper and equitable and voted not to change the characterization of his service.
   
   d.  The applicant was notified of the board's decision on 21 March 1978.

11.  In support of his application, the applicant provides the following documents:

   a.  A psychological evaluation provided by John F. P---, Ph.D., Clinical Psychologist, dated 7 January 2008, that offers clinical findings of depression, alcohol dependence, and post trauma with a diagnosis of PTSD.  The applicant related to the psychologist that he witnessed a friend being blown apart by a mortar shell in Vietnam, he was told to pick up the body parts, and he has nightmares of picking up his friend's foot.  He also stated he began having problems with authority while serving in Vietnam.

   b.  A letter from Ms. Teresa A. L----, dated 14 January 2007, the applicant's sister, who states she is not aware of the details of her brother's tour of duty, but she's convinced that his issues have been caused by the combat stress he suffered in Vietnam.

	c.  A letter from Mr. Jerry M-----, dated 12 January 2008, a friend from grade school, who states the applicant was kind and helpful in his youth.  They lost touch after high school, but became reacquainted about 15 years ago.  He noted that the applicant had changed noticeably; he was distant, reclusive, and did not want to talk about his military service.  He believes the negative traumatic experiences in Vietnam have adversely affected the applicant's life.

	d.  A letter from Mr. Pete S-----, dated 28 January 2008, the applicant's brother, who states the applicant was a role model for him during their school years.  He adds that his brother changed after returning from Vietnam and demonstrated destructive behavior.  He was angry, reclusive, and began to drink and use drugs.  He adds that his family knew his brother needed help, but they could not reach him and did not know where to obtain the help he needed.

12.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

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

   a.  Chapter 10 provides 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, an undesirable discharge was considered appropriate at the time the applicant was separated.

   b.  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.  However, an undesirable discharge was authorized at the time the applicant was separated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded to a general discharge because he was ordered to return to the same infantry unit in Vietnam where the Soldiers who threatened him were still assigned.


2.  The applicant reenlisted for ACG 71 and was issued orders for training and duty in ACG 71 with the 537th Personnel Service Company (RVN) beginning
9 May 1970.  He went on 30 days leave in CONUS on 31 March 1970 and did not return to the RVN:

   a.  The applicant went AWOL in CONUS on three separate occasions for a total of 190 days of lost time (i.e., 6 months and 10 days).

   b.  He completed 6 months and 17 days of net active service during the period of service under review.
   
   c.  The applicant's record of service is not sufficiently mitigating to warrant relief.

3.  The applicant's request for separation under Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The offense that led to his discharge far outweighs his overall record.  Therefore, considering all of the facts of the case, the applicant's characterization of service was appropriate and equitable.

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)                                         AR20090017124



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ABCMR Record of Proceedings (cont)                                         AR20090017124



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