IN THE CASE OF:	  

		BOARD DATE:	  11 May 2010	

		DOCKET NUMBER:  AR20090017180 


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 discharge to general.

2.  The applicant states he served two tours in Vietnam and now suffers from major depression as the result of his post-traumatic stress disorder (PTSD).  The Department of Veterans Affairs (VA) will not help him unless he has at least a general discharge.

3.  The applicant provides no substantiating documents to support his request.

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 and entered active duty on 10 January 1968.  He completed training as a communications equipment operator and served in Vietnam from July 1968 to July 1969.

3.  He returned to the United States and was stationed at Fort Meade, Maryland.  He was promoted to sergeant (E-5) on 15 September 1969 and, as evidenced by a request of a lump sum payment, he reenlisted for a bonus on 29 December 1969.  

4.  The applicant returned to Vietnam on 21 March 1970 and was awarded the Army Commendation Medal for meritorious achievement and also an oak leaf cluster for the Army Commendation Medal for meritorious achievement.  He returned to the United States on 25 February 1971 and reported for duty at Fort Meade, Maryland, on 20 April 1971.

5.  On 12 May 1971, the applicant was awarded the Army Good Conduct Medal for the period January 1968 through January 1971, but he was subsequently absent without leave (AWOL) on 8 July 1971.

6.  A special court-martial convicted him of AWOL from 8 July 1971 to 11 April 1972.  The approved sentence included reduction to pay grade E-1, forfeiture of $100.00 pay per month for 3 months, and 3 months of confinement.

7.  On 31 May 1972, the Commanding Officer, Army Correctional Training Facility, Fort Riley, Kansas, suspended the unexecuted portions of the sentence until 12 July 1972 at which point they were remitted.  

8.  The applicant was again AWOL from 28 July 1972 to 23 April 1973 and from 7 May 1973 to 11 June 1974.  When charges were preferred under the Uniform Code of Military Justice (UCMJ) for those offenses, the applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial.

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charges 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.

10.  The separation authority approved the request and directed issuance of an undesirable discharge.

11.  On 19 July 1974, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He had 3 years, 8 months, and 17 days of total active service and 1,023 days of lost time.

12.  There is no available evidence that the Army Discharge Review Board (ADRB) ever reviewed his discharge.

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

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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, a discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7b, states a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he served two tours in Vietnam and now suffers from major depression as the result of his PTSD.  The VA will not help him unless he has at least an under honorable conditions discharge.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The applicant's service was appropriately characterized by the offenses for which he was charged.

3.  The applicant two tours of duty and personal decorations in Vietnam are noted, but this factor is far outweighed by the misconduct of record.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

____x____  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20090017180



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ABCMR Record of Proceedings (cont)                                         AR20090017180



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